Legal Profession Act 2006 (NT)

NORTHERN TERRITORY OF AUSTRALIA

LEGAL PROFESSION ACT 2006

As in force at 1 January 2022

Table of provisions [if supportFields]><span style='mso-element:field-begin'></span><span style='mso-spacerun:yes'>&#160;</span>TOC \o &#34;1-9&#34; <span style='mso-element: field-separator'></span><![endif] — IntroductionPart 1.1 — Preliminary matters1 — Short title2 — Commencement3 — Main purposes of this ActPart 1.2 — Interpretation4 — Definitions5 — Terms relating to lawyers6 — Terms relating to legal practitioners7 — Terms relating to associates and principals of law practices8 — Home jurisdiction9 — Admission to legal profession10 — Academic qualifications and legal training requirements11 — Suitability matters12 — Corresponding authorities13 — Corresponding disciplinary bodies14 — Corresponding laws and corresponding foreign laws15 — References to convictions for offences16 — Application of Criminal CodeChapter 2 — General requirements for engaging in legal practicePart 2.1 — Reservation of legal work and legal titles17 — Purposes of Part18 — Prohibition on engaging in legal practice when not entitled19 — Prohibition on representing or advertising entitlement to engage in legal practice when not entitled20 — Presumptions about taking or using name, title or description21 — Appointment of Queen's Counsel or Senior Counsel22 — Schemes for specialist lawyers23 — Contravention of Part by Australian lawyers who are not legal practitionersPart 2.2 — Admission of local lawyersDivision 1 — Preliminary matters24 — Purposes of PartDivision 2 — Admission to legal profession25 — Admission26 — Conditions of admission27 — Roll of persons admitted to legal profession28 — Local lawyer is officer of Supreme CourtDivision 3 — Eligibility and suitability for admission29 — Eligibility for admission30 — Suitability for admission31 — Early consideration of suitability32 — Referral of matters to Supreme Court33 — Binding effect of declaration or order34 — Entitlement to be represented, heard and make representationsDivision 4 — Powers and functions of Admission Board35 — Admission Board to advise on application for admission36 — Compliance certificates37 — Consideration of applicant's eligibility and suitabilityDivision 5 — Appeals38 — AppealsDivision 6 — Miscellaneous matters39 — Mutual recognition local registration authority40 — Certificate of admission41 — Joinder of parties and counsel assisting42 — Costs relating to applications and referrals43 — Admission rulesPart 2.3 — Legal practice by Australian legal practitionersDivision 1 — Preliminary matters44 — Purposes of PartDivision 2 — Legal practice in this jurisdiction by Australian legal practitioners45 — Entitlement of holder of Australian practising certificate to practise in this jurisdictionDivision 3 — Local practising certificates generally46 — Local practising certificates47 — Suitability to hold local practising certificate48 — Duration of local practising certificate49 — Local legal practitioner is officer of Supreme CourtDivision 4 — Grant or renewal of local practising certificates50 — Who may apply for grant or renewal of local practising certificate51 — Making application and fees52 — Timing of application for renewal of local practising certificate53 — Late fee54 — Grant or renewal of local practising certificateDivision 5 — Amendment, suspension or cancellation of local practising certificates55 — Application of Division56 — Grounds for amending, suspending or cancelling local practising certificate57 — Amending, suspending or cancelling local practising certificate58 — Operation of amendment, suspension or cancellation of local practising certificate59 — Other ways of amending or cancelling local practising certificate60 — Relationship of this Division with Chapter 4Division 6 — Special powers in relation to local practising certificates show cause events61 — Applicant for local practising certificate – show cause event62 — Holder of local practising certificate – show cause event63 — Refusal, amendment, suspension or cancellation of local practising certificate – failure to show cause64 — Restriction on making further applications65 — Relationship of this Division with Part 46 and Chapter 6Division 7 — Further provisions relating to local practising certificates66 — Immediate suspension of local practising certificate67 — Surrender and cancellation of local practising certificate68 — Return of local practising certificateDivision 8 — Conditions on local practising certificates69 — Conditions generally70 — Conditions imposed by Law Society71 — Imposition or variation of conditions pending criminal proceedings72 — Statutory condition regarding conditions imposed on interstate admission73 — Statutory condition regarding practice – general74 — Statutory condition regarding practice as barrister75 — Additional conditions on practising certificates of barristers76 — Statutory condition regarding notice of offence77 — Conditions imposed by legal profession rules78 — Compliance with conditionsDivision 9 — Interstate legal practitioners79 — Requirement for interstate practising certificate and professional indemnity insurance80 — Extent of entitlement of interstate legal practitioner to practise in this jurisdiction81 — Additional conditions on practice of interstate legal practitioners82 — Special provisions about interstate legal practitioner engaging in unsupervised legal practice in this jurisdiction83 — Interstate legal practitioner is officer of Supreme Court84 — Mutual recognition local registration authorityDivision 10 — Miscellaneous matters85 — Jurisdiction protocols86 — Consideration and investigation of applicants or holders87 — Register of local practising certificates88 — Orders about conditions89 — Appeals90 — Government lawyers – general exemption from certain conditions91 — Government lawyers of other jurisdictionsPart 2.4 — Suitability reportsDivision 1 — Preliminary matters92 — Main purpose of Part93 — DefinitionsDivision 2 — Police reports94 — Relevant authority may ask for police reportDivision 3 — Health assessments95 — Health assessment96 — Appointment of health assessor97 — Health assessment report98 — Payment for health assessment and report99 — Use of health assessment reportDivision 4 — General matters100 — Operation of this PartPart 2.5 — Inter-jurisdictional provisions regarding admission and practising certificatesDivision 1 — Preliminary matters101 — Purpose102 — Definition103 — Other requirements not affectedDivision 2 — Notices to be given by local authorities to interstate authorities104 — Official notice to other jurisdictions of applications for admission and associated matters105 — Official notice to other jurisdictions of removals from local roll106 — Law Society to notify other jurisdictions of certain mattersDivision 3 — Notices to be given by lawyers to local authorities107 — Lawyer to give notice of removal in another jurisdiction108 — Lawyer to give notice of interstate orders109 — Lawyer to give notice of foreign regulatory action110 — Provisions relating to requirement to give noticeDivision 4 — Taking of action by local authorities in response to notices received111 — Peremptory removal of local lawyer's name from local roll following removal in another jurisdiction112 — Peremptory cancellation of local practising certificate following removal of name from interstate roll113 — Show cause procedure for removal of lawyer's name from local roll following foreign regulatory action114 — Show cause procedure for cancellation of local practising certificate following foreign regulatory action115 — Order for non-removal of name or non-cancellation of local practising certificate116 — Local authority may give information to other local authoritiesPart 2.6 — Incorporated legal practices and multi-disciplinary partnershipsDivision 1 — Preliminary matters117 — Purposes of Part118 — DefinitionsDivision 2 — Incorporated legal practices119 — Nature of incorporated legal practice120 — Non-legal services and businesses of incorporated legal practices121 — Corporations eligible to be incorporated legal practice122 — Notice of intention to start providing legal services123 — Prohibition on representations that corporation is incorporated legal practice124 — Notice of ceasing provision of legal services125 — Incorporated legal practice must have legal practitioner director126 — Obligations of legal practitioner director relating to misconduct127 — Incorporated legal practice without legal practitioner director128 — Obligations and privileges of practitioners who are officers or employees129 — Conflicts of interest130 — Disclosure obligations131 — Effect of non-disclosure of provision of certain services132 — Application of legal profession rules133 — Requirements relating to advertising134 — Extension of vicarious liability relating to failure to account, pay or deliver and dishonesty to incorporated legal practices135 — Sharing of receipts, revenue or other income136 — Disqualified persons137 — Audit of incorporated legal practice138 — Application of Chapter 6139 — Banning of incorporated legal practices140 — Disqualification from managing incorporated legal practice141 — Disclosure of information to ASIC142 — External administration proceedings under Corporations Act143 — External administration proceedings under other legislation144 — Incorporated legal practice subject to receivership under this Act and external administration under Corporations Act145 — Incorporated legal practice subject to receivership under this Act and external administration under other legislation146 — Cooperation between courts147 — Relationship of Act to constitution of incorporated legal practice148 — Relationship of Act to legislation establishing incorporated legal practice149 — Relationship of Act to Corporations legislation150 — Undue influenceDivision 3 — Multi-disciplinary partnerships151 — Nature of multi-disciplinary partnership152 — Conduct of multi-disciplinary partnerships153 — Notice of intention to start practice in multi-disciplinary partnership154 — General obligations of legal practitioner partners155 — Obligations of legal practitioner partner relating to misconduct156 — Actions of partner who is not Australian legal practitioner157 — Obligations and privileges of practitioners who are partners or employees158 — Conflicts of interest159 — Disclosure obligations160 — Effect of non-disclosure of provision of certain services161 — Application of legal profession rules162 — Requirements relating to advertising163 — Sharing of receipts, revenue or other income164 — Disqualified persons165 — Prohibition on partnerships with certain partners who are not Australian legal practitioners166 — Undue influenceDivision 4 — Miscellaneous matters167 — Obligations of individual practitioners not affected168 — RegulationsPart 2.7 — Legal practice by foreign lawyersDivision 1 — Preliminary matters169 — Purpose170 — Definitions171 — Part does not apply to Australian legal practitionersDivision 2 — Practice of foreign law172 — Requirement for registration173 — Entitlement of Australian-registered foreign lawyer to practise in this jurisdiction174 — Scope of practice175 — Form of practice176 — Application of Australian professional ethical and practice standards177 — Designation178 — Letterhead and other identifying documents179 — Advertising180 — Foreign lawyer employing Australian legal practitioner181 — Trust money and trust accounts182 — Professional Indemnity insurance183 — Fidelity coverDivision 3 — Local registration of foreign lawyers generally184 — Local registration of foreign lawyers185 — Duration of registration186 — Locally-registered foreign lawyer is not officer of Supreme CourtDivision 4 — Applications for grant or renewal of local registration187 — Application for grant or renewal of registration188 — Manner of application189 — Requirements regarding applications for grant or renewal of registrationDivision 5 — Grant or renewal of registration190 — Grant or renewal of registration191 — Requirement to grant or renew registration if criteria satisfied192 — Refusal to grant or renew registrationDivision 6 — Amendment, suspension or cancellation of local registration193 — Application of this Division194 — Grounds for amending, suspending or cancelling registration195 — Amending, suspending or cancelling registration196 — Operation of amendment, suspension or cancellation of registration197 — Other ways of amending or cancelling registration198 — Relationship of this Division with Chapter 4Division 7 — Special powers in relation to local registration show cause events199 — Applicant for local registration – show cause event200 — Locally-registered foreign lawyer – show cause event201 — Refusal, amendment, suspension or cancellation of local registration – failure to show cause202 — Restriction on making further applications203 — Relationship of this Division with Part 46 and Chapter 6Division 8 — Further provisions relating to local registration204 — Immediate suspension of registration205 — Surrender of local registration certificate and cancellation of registration206 — Automatic cancellation of registration on grant of practising certificate207 — Suspension or cancellation of registration not to affect disciplinary processes208 — Return of local registration certificate on amendment, suspension or cancellation of registrationDivision 9 — Conditions on registration209 — Conditions generally210 — Conditions imposed by Law Society211 — Imposition or variation of conditions pending criminal proceedings212 — Statutory condition regarding notice of offence213 — Conditions imposed by legal profession rules214 — Compliance with conditionsDivision 10 — Interstate-registered foreign lawyers215 — Extent of entitlement of interstate-registered foreign lawyer to practise in this jurisdiction216 — Additional conditions on practice of interstate-registered foreign lawyersDivision 11 — Miscellaneous matters217 — Consideration and investigation of applicants and locally-registered foreign lawyers218 — Register of locally-registered foreign lawyers219 — Publication of information about locally-registered foreign lawyers220 — Supreme Court orders about conditions221 — Exemption by Law Society222 — Membership of professional association223 — Refund of fees224 — AppealsPart 2.8 — Complying community legal centres225 — Purpose of Part226 — Definitions227 — Complying community legal centre228 — Qualifications of supervising legal practitioner229 — Temporary engagement of supervising legal practitioner230 — Notice of change in supervising legal practitioner231 — Application of Parts 31, 34, 35 and Chapters 5, 6 and 9232 — Provision of legal services233 — Entitlement to costs in proceedingsChapter 3 — Conduct of legal practicePart 3.1 — Trust money and trust accountsDivision 1 — Preliminary matters234 — Purposes of Part235 — Interpretation236 — Money involved in financial services or investments237 — Determinations about status of money238 — Application of Part to law practices and trust money239 — Trust money protocols240 — When money is received241 — Discharge by legal practitioner associate of obligations of law practice242 — Liability of principals of law practice243 — Former practices, principals and associates244 — Barristers receiving money on behalf of other personsDivision 2 — Trust accounts and trust money245 — Maintenance of general trust account246 — Certain trust money to be deposited in general trust account247 — Holding, disbursing and accounting for trust money248 — Controlled money249 — Transit money250 — Trust money subject to specific powers251 — Trust money received in form of cash252 — Protection of trust money253 — Intermixing money254 — Dealing with trust money – legal costs and unclaimed money255 — Deficiency in trust account256 — Reporting certain irregularities and suspected irregularities257 — Keeping trust records258 — False names259 — Unclaimed trust money260 — When Funds Management Committee may pay unclaimed amount261 — Appeal against decision to refuse claim for unclaimed amountDivision 3 — Investigations and external examinationsSubdivision 1 — Investigations262 — Appointment of investigators263 — Investigations264 — Application of Chapter 6265 — Investigator's report266 — Confidentiality by investigator267 — When costs of investigation are debtSubdivision 2 — External examinations268 — Designation of external examiners269 — Designation and appointment of associates as external examiners270 — Trust records to be externally examined271 — Final examination of trust records272 — Examination of affairs in connection with examination of trust records273 — Carrying out examination274 — External examiner's report275 — Confidentiality of external examiner276 — Law practice liable for costs of examinationSubdivision 3 — General matters277 — AppealsDivision 4 — Provisions relating to ADIs278 — Approval of ADIs and general trust accounts279 — ADI not subject to certain obligations and liabilities280 — Reports, records and informationDivision 5 — Statutory deposits281 — Statutory deposits282 — Status and repayment of deposited moneyDivision 6 — Miscellaneous matters283 — Restrictions on receipt of trust money284 — Application of Part to incorporated legal practices and multi-disciplinary partnerships285 — Disclosure to clients – money not received as trust money286 — Disclosure of accounts used to hold money entrusted to legal practitioners287 — RegulationsPart 3.2 — Advertising legal services for personal injury claims288 — Application of Part289 — Definitions290 — Restriction on advertising in relation to personal injury claims291 — Permitted methods of advertising292 — Prohibition against touting for potential claimants293 — Prohibition against paying or touting for potential claimantsPart 3.3 — Costs disclosure and assessmentDivision 1 — Preliminary matters294 — Purposes of Part295 — Interpretation296 — Terms relating to third party payersDivision 2 — Application of Part297 — Application of Part – first instructions rule298 — Part also applies by agreement or at client's election299 — Displacement of Part300 — How and where client first instructs law practice301 — When does matter have substantial connection with this jurisdiction302 — What happens when different laws apply to matterDivision 3 — Costs disclosure303 — Disclosure of costs to clients304 — Disclosure if another law practice is to be retained305 — How and when must disclosure be made to client306 — Exceptions to requirement for disclosure307 — Additional disclosure – settlement of litigious matters308 — Additional disclosure – uplift fees309 — Form of disclosure310 — Ongoing obligation to disclose311 — Effect of failure to disclose312 — Progress reports313 — Disclosure to associated third party payersDivision 4 — Legal costs generally314 — On what basis legal costs are recoverable315 — Security for legal costs316 — Interest on unpaid legal costsDivision 5 — Costs agreements317 — Making costs agreements318 — Conditional costs agreements319 — Conditional costs agreements involving uplift fees320 — Contingency fees prohibited321 — Effect of costs agreement322 — Certain costs agreements void323 — Setting aside costs agreementsDivision 6 — Billing324 — Legal costs cannot be recovered unless bill has been served325 — Bills326 — Notice of client's rights327 — Request for itemised bill328 — Interim billsDivision 7 — Mediation of costs disputes329 — Definitions330 — Referral for mediationDivision 8 — Costs assessmentsSubdivision 1 — Interpretation331 — DefinitionSubdivision 2 — Applications332 — Application by clients or third party payers for costs assessment333 — Application for costs assessment by law practice retaining another law practice334 — Application for costs assessment by law practice giving bill335 — How to make an application for costs assessment336 — Consequences of application337 — Persons to be notified of applicationSubdivision 3 — Assessments338 — Procedure on assessment339 — Assessment of complying costs agreements340 — Costs fixed by other legislation341 — Criteria for costs assessment342 — Legal costs subject to consumer dispute not subject to assessment343 — Contracting out of Division by sophisticated clientSubdivision 4 — Determinations344 — Determination of costs assessment345 — Certificate of determination346 — Determination of costs of costs assessment347 — Reasons for determination348 — Correction of error in determination349 — Determination final350 — Recovery of costs of costs assessmentSubdivision 5 — Review of determinations351 — Definitions352 — Application by party for review of determination353 — Reviewer may review determination of costs of costs assessment354 — Conduct of review355 — Relevant documents to be produced356 — Effect of review on costs assessor's determination357 — Certificate as to determination358 — Recovery of costs of review359 — Reasons for determination360 — Correction of error in determination361 — Appeal against determination or decisionSubdivision 6 — Appeals362 — Appeal against decision of costs assessor as to matter of law363 — Appeal against determination of costs assessor by leave364 — Effect of appeal on application365 — Assessor can be party to appealDivision 9 — Costs assessors366 — Costs assessors367 — Vacancy in office of cost assessor368 — ConfidentialityDivision 10 — Miscellaneous matters369 — Protection from liability370 — Referral for disciplinary action371 — Application of Part to incorporated legal practices and multi-disciplinary partnerships372 — Imputed acts, omission or knowledgePart 3.4 — Professional indemnity insurance373 — Definition374 — Purpose375 — Exemptions376 — Law practice required to insure377 — Professional indemnity insurance requirements378 — Professional indemnity insurance scheme379 — Giving information to Law Society for insurance380 — Continuing obligation for professional indemnity insurancePart 3.5 — Fidelity coverDivision 1 — Preliminary matters381 — Purpose382 — Definitions383 — Time of default384 — Application of this PartDivision 2 — Fidelity Fund385 — Establishment of Fidelity Fund386 — Financial management of Fidelity Fund387 — Directions about prudential management of Fidelity Fund388 — Determinations about funding from Fidelity Fund389 — Payments into and out of Fidelity Fund390 — Insurance391 — BorrowingDivision 3 — Contributions and levies392 — Deciding annual contribution393 — Payment of annual contributions394 — Imposition of levy395 — Provisions about payment of contribution or levyDivision 4 — Defaults to which this Part applies396 — Relevant jurisdiction397 — Defaults to which this Part applies398 — Defaults relating to financial services or investmentsDivision 5 — Claims about defaults399 — Claims about defaults400 — Time limit for making claims401 — Advertisements402 — Time limit for making claims following advertisement403 — Claims not affected by certain matters404 — Advance paymentsDivision 6 — Determination of claims405 — Law Society may determine claim406 — Maximum amount allowable407 — Costs408 — Interest409 — Reduction of claim because of other benefits410 — Subrogation411 — Repayment of certain amounts412 — Notice of delay in making decision413 — Notice of decision414 — Appeal against decision on claim415 — Appeal against failure to determine claim416 — Court proceedingsDivision 7 — Payments from Fidelity Fund for defaults417 — Payments for defaults418 — Caps on payments419 — Sufficiency of Fidelity FundDivision 8 — Claims by law practices or associates420 — Claims by law practices or associates about defaults421 — Claims by law practices or associates about notional defaultsDivision 9 — Defaults involving interstate elements422 — Concerted interstate defaults423 — Defaults involving interstate elements where committed by one associate onlyDivision 10 — Inter-jurisdictional provisions424 — Fidelity protocols425 — Forwarding of claims426 — Investigation of defaults to which this Part applies427 — Investigation of defaults to which corresponding law applies428 — Investigation of concerted interstate defaults and other defaults involving interstate elements429 — Recommendations by Law Society to corresponding authorities430 — Recommendations to and decisions by Law Society after receiving recommendations from corresponding authority431 — Request to another jurisdiction to investigate aspects of claim432 — Request from another jurisdiction to investigate aspects of claim433 — Cooperation with other authoritiesDivision 11 — Miscellaneous matters434 — Interstate legal practitioner becoming authorised to withdraw from local trust account435 — Application of Part to incorporated legal practices436 — Application of Part to multi-disciplinary partnerships437 — Application of Part to Australian lawyers whose practising certificates have lapsedPart 3.6 — Mortgage practices and managed investment schemesDivision 1 — Preliminary matters438 — Definitions439 — Associate of a legal practitioner440 — Territory regulated mortgageDivision 2 — Conduct of mortgage practices441 — Conduct of mortgage practices442 — Nomination of practice as Territory mortgage practice443 — Requirement to notify Law Society of Territory regulated mortgages444 — Legal practitioner to have fidelity cover in relation to regulated mortgages445 — Limited claim against Fidelity Fund in relation to regulated mortgage446 — Notice of insurance arrangements for regulated mortgage447 — Failure to obtain fidelity insurance for regulated mortgageDivision 3 — Managed investment schemes448 — Involvement of legal practitioners in managed investment schemes449 — Claims against Fidelity Fund relating to managed investment schemes connected with legal practitioners450 — Transfer of mortgages to responsible entity451 — Regulations relating to managed investment schemesDivision 4 — Transitional arrangements for pre-existing mortgages452 — Fidelity insurance for pre-existing regulated mortgage453 — Prohibited conduct in relation to run-out mortgage454 — Substitution of lender or contributor under run-out mortgage455 — Limited claims against Fidelity Fund by substitute lenderDivision 5 — Miscellaneous matters456 — Law Society may require information about mortgage practices457 — Indemnity insurance458 — Law Society to disseminate information459 — Secrecy provisions not affected460 — Regulations relating to PartChapter 4 — Complaints and disciplinePart 4.1 — Preliminary matters461 — Purposes of Chapter462 — Definitions463 — Application of Chapter to lawyers, former lawyers and former practitionersPart 4.2 — Key concepts464 — Unsatisfactory professional conduct465 — Professional misconduct466 — Conduct capable of constituting unsatisfactory professional conduct or professional misconductPart 4.3 — Application of this Chapter467 — Practitioners to whom this Chapter applies468 — Conduct to which this Chapter applies – generally469 — Conduct to which this Chapter applies – insolvency, serious offences and tax offencesPart 4.4 — Complaints about Australian legal practitioners470 — Complaints471 — Making of complaints472 — To whom complaint made473 — Complaints made over 3 years after conduct concerned474 — Further information and verification475 — Practitioner to be notified of complaint476 — Submissions by practitioner477 — Preliminary assessment478 — Summary dismissal of complaints479 — Withdrawal of complaintsPart 4.5 — Mediation480 — Consumer dispute481 — Mediation of complaint involving consumer dispute solely482 — Mediation of hybrid complaint483 — Compulsory mediation of consumer dispute484 — Nature of mediation485 — Facilitation of mediation486 — List of mediators487 — Confidentiality of mediation processPart 4.6 — Investigation of complaints488 — Complaints to be investigated489 — Consultation and cooperation on complaints490 — Monitoring by Statutory Supervisor of conduct of investigation491 — Appointment of investigator492 — Application of Chapter 6493 — Application for cost assessment494 — Conduct that may be investigated495 — Modified complaintsPart 4.7 — Decisions of Law Society496 — Decision after investigation497 — Decision without investigation498 — Dismissal of complaint499 — Summary conclusion of complaint procedure by fine or reprimand500 — Record of decision501 — Reasons to be provided to complainant and practitionerPart 4.8 — Immediate suspension of local practising certificate502 — Immediate suspension of local practising certificate503 — Other powers to suspend not affectedPart 4.9 — General procedural matters504 — Rules of procedural fairness505 — Duty to deal with complaints efficiently and expeditiouslyPart 4.10 — Appeals against Law Society decisionsDivision 1 — Appeals to Disciplinary Tribunal506 — Appeals507 — Hearing procedures508 — Parties509 — Hearing closed to public510 — Appeal may be withdrawn or discontinued511 — Decision on appeal512 — Costs of appealDivision 2 — Appeals to Supreme Court513 — Appeals514 — Decision on appealPart 4.11 — Proceedings in Disciplinary Tribunal for disciplinary applications515 — Starting proceedings516 — Time for starting proceedings517 — Hearings518 — Joinder519 — Variation of disciplinary application520 — Nature of allegations521 — Rules of evidence522 — Parties523 — Public hearings524 — Power to disregard procedural lapses525 — Decisions of Disciplinary Tribunal526 — Interlocutory and interim orders527 — Consent orders528 — Compliance with decisions and orders529 — Costs530 — Notice of decision531 — Early termination of proceedings532 — Other remedies not affected533 — Appeal against Disciplinary Tribunal ordersPart 4.12 — Compensation534 — Compensation orders535 — Prerequisites to making of compensation orders536 — Making of compensation orders537 — Effect of compensation order538 — Enforcement of compensation orders539 — Other remedies not affectedPart 4.13 — Publicising disciplinary action540 — Disciplinary action541 — Register of Disciplinary Action542 — Other ways of publicising disciplinary action543 — Quashing of disciplinary action544 — Liability for publicising disciplinary action545 — Disciplinary action taken because of infirmity, injury or illness546 — Division subject to secrecy and non-disclosure ordersPart 4.14 — Inter-jurisdictional provisions547 — Cross-border protocols548 — Request to another jurisdiction to investigate complaint549 — Request from another jurisdiction to investigate complaint550 — Sharing of information with corresponding authorities551 — Cooperation with corresponding authorities552 — Compliance with orders made under corresponding laws553 — Other powers or functions not affectedPart 4.15 — Miscellaneous matters554 — Jurisdiction of Supreme Court555 — Information about complaints procedure556 — Contravention of orders557 — Performance criteria558 — Reports to Attorney-General559 — Effect of other proceedings560 — Protection from liability561 — Non-compellability of certain witnesses562 — Undertakings by Law Society and Statutory Supervisor regarding privileged or confidential information563 — Confidentiality of client communications564 — Claims of privilege565 — Waiver of privilege or duty of confidentialityChapter 5 — External interventionPart 5.1 — Preliminary matters566 — Purposes of Chapter567 — Interpretation568 — Application of Chapter to barristers569 — Application of Chapter to Australian-registered foreign lawyers570 — Application of Chapter to other personsPart 5.2 — Initiation of external intervention571 — Circumstances warranting external intervention572 — Decision regarding external interventionPart 5.3 — Supervisors of trust money573 — Appointment of supervisor of trust money574 — Notice of appointment575 — Effect of service of notice of appointment576 — Role of supervisor of trust money577 — Records of and dealing with trust money of law practice under supervision578 — Termination of supervisor's appointmentPart 5.4 — Managers579 — Appointment of manager580 — Notice of appointment581 — Effect of service of notice of appointment582 — Role of manager583 — Records and accounts of law practice under management and dealings with trust money584 — Deceased estates585 — Termination of manager's appointmentPart 5.5 — Receivers586 — Appointment of receiver587 — Notice of appointment588 — Effect of service of notice of appointment589 — Role of receiver590 — Records and accounts of law practice under receivership and dealings with trust money591 — Power of receiver to take possession of regulated property592 — Power of receiver to take delivery of regulated property593 — Power of receiver to deal with regulated property594 — Power of receiver to require documents or information595 — Examinations596 — Lien for costs on regulated property597 — Regulated property not to be attached598 — Receiver may recover money paid away in bets599 — Recovery of regulated property if there has been breach of trust etc.600 — Improperly destroying property etc.601 — Deceased estates602 — Termination of receiver's appointmentPart 5.6 — General matters603 — Conditions on appointment of external intervener604 — Status of acts of external intervener605 — Eligibility for re-appointment or authorisation606 — Appeal against appointment607 — Directions of Supreme Court608 — Manager and receiver appointed for law practice609 — Requirement for ADI to disclose information610 — Fees, legal costs and expenses611 — Reports by external intervener612 — Report to Law Society of disciplinary matters613 — Confidentiality614 — Provisions relating to requirements under this Part615 — Obstruction of external intervener616 — Protection from liabilityChapter 6 — Investigatory powersPart 6.1 — Preliminary matters617 — Purpose of Chapter618 — DefinitionsPart 6.2 — Requirements relating to documents, information and other assistance619 — Application of Part620 — Requirements for trust account investigations and examinations and ILP compliance audits621 — Requirements for investigations under Chapter 4622 — Provisions relating to requirements under this PartPart 6.3 — Entry and search of premises623 — Application of Part624 — Investigator's power to enter premises625 — Search warrants626 — Powers of investigator while on premisesPart 6.4 — Additional powers in relation to incorporated legal practices627 — Application of Part628 — Investigative powers relating to investigations and audits629 — Examination of persons630 — Inspection of books631 — Power to hold hearingsPart 6.5 — Miscellaneous matters632 — Obstruction of investigator633 — Obligation of Australian lawyers634 — Permitted disclosure of confidential informationChapter 7 — Regulatory authoritiesPart 7.1 — Law Society Northern TerritoryDivision 1 — Establishment, status and constitution of Law Society635 — Establishment636 — Status637 — Members constituting Law SocietyDivision 2 — Management of Law Society638 — Council of Law Society639 — Council's function640 — Chief executive officer641 — Chief executive officer's functionDivision 3 — Financial matters642 — Financial management643 — BudgetDivision 4 — General matters644 — Constitution645 — Relationship with 646 — Relationship with other Acts647 — Delegations648 — Annual reportPart 7.2 — Admission board649 — Definitions650 — Establishment651 — Membership652 — Duration of appointment653 — Removal from office of appointed member654 — Secretary655 — Meetings656 — Delegations657 — Protection from liabilityPart 7.3 — Legal Practitioners Funds Management Committee658 — Definitions659 — Establishment660 — Status661 — Membership662 — Duration of appointment663 — Resignation and removal from office of appointed member664 — Meetings665 — Financial management666 — Delegations667 — Protection from liabilityPart 7.4 — Legal Practitioners Disciplinary Tribunal668 — Definition669 — Establishment670 — Membership671 — Chairperson and deputy chairperson672 — Duration of appointment673 — Resignation and removal of member674 — Constitution of Disciplinary Tribunal for hearings675 — Presiding member676 — Change in composition677 — Protection from liability677A — Practice and procedurePart 7.5 — Statutory Supervisor678 — Office established679 — Appointment680 — Resignation681 — Delegations682 — Protection from liabilityPart 7.6 — Application of Corporations Act683 — Excluded matters for Corporations ActPart 7.7 — General matters684 — Definition685 — Functions686 — Powers687 — Evidentiary provisionsChapter 8 — Legal profession rules and regulationsPart 8.1 — Legal profession rulesDivision 1 — Preliminary matters688 — PurposeDivision 2 — Rules for Australian legal practitioners and locally-registered foreign lawyers689 — Rules for Australian legal practitioners690 — Rules for foreign lawyers691 — Subject matter of legal profession rulesDivision 3 — Rules for incorporated legal practices and multi-disciplinary partnerships692 — Rule-making powerDivision 4 — General matters693 — Rule-making procedures694 — Binding nature of legal profession rules695 — Legal profession rules inconsistent with Act or regulationsPart 8.2 — Regulations696 — Regulation-making powerChapter 9 — Miscellaneous matters697 — Contravention of certain provisions not offence698 — Liability of principals699 — Associates who are disqualified or convicted persons700 — Injunctions701 — Disclosure of information by local regulatory authorities702 — Confidentiality of personal information703 — Client legal privilege or duty of confidence does not affect validity of or compliance with certain requirements704 — Duty to report suspected offences705 — Payment of fines706 — Approved formsChapter 10 — Repeals and transitional matters for Legal Profession Act 2006Part 10.1 — Repeals707 — Repeal of legal practitioner legislation708 — Repeal of other legislationPart 10.2 — Transitional mattersDivision 1 — Preliminary matters709 — DefinitionsDivision 2 — Reservation of legal work and legal titles710 — Her Majesty's counselDivision 3 — Admission of local lawyers711 — Local roll712 — Existing legal practitioners713 — Applications for admission714 — References to legal practitionerDivision 4 — Legal practice by Australian legal practitioners715 — Practising certificates716 — Applications for practising certificate717 — Supervised legal practiceDivision 5 — Incorporated legal practices and multi-disciplinary partnerships718 — Incorporated legal practices719 — Multi-disciplinary partnershipsDivision 6 — Practising companies720 — Definitions721 — Repealed incorporation Act ceases to apply722 — Alteration of constitution723 — Practising company is law firm724 — Directors to guarantee debts of company725 — Records726 — Practising company becoming incorporated legal practiceDivision 7 — Legal practice by foreign lawyers727 — Foreign lawyersDivision 8 — Trust money and trust accounts728 — Definitions729 — Payment date730 — Continuing application of former trust account provisions731 — When offence not committed732 — Return of statutory deposits733 — Interest on investment incomeDivision 9 — Costs disclosure and assessment734 — Definition735 — Continuing application of former costs provisions736 — Taxation of costs737 — Compliance with former costs provisions sufficientDivision 10 — Professional indemnity insurance738 — Existing professional indemnity insurance739 — ExemptionsDivision 11 — Fidelity cover740 — Definitions741 — Fidelity Fund742 — Amounts payable to and from old fund before commencement date743 — Determination for funding for Law SocietyDivision 12 — Complaints and discipline744 — Pending investigations into professional conduct745 — Investigations into professional conduct746 — Pending hearings and inquiries747 — New complaints about old conductDivision 13 — External intervention748 — Application of Chapter 5 for existing Part VIIIA managers749 — Continued application of Part IX to application for appointment of receiver750 — Application of Chapter 5 for existing Part IX receiversDivision 14 — Regulatory authorities751 — Law Society752 — Admission Board753 — Legal Practitioners' Fidelity Fund Committee754 — Legal Practitioners' Trusts CommitteeDivision 15 — Admission rules and legal professional conduct rules755 — Admission rules756 — Professional conduct rulesDivision 16 — Law Society public purposes trust757 — Winding-up of trustDivision 17 — Miscellaneous matters758 — General saving and transitional provision759 — Continued application of repealed Act760 — Interpretation Act not affectedSchedule — Acts repealedENDNOTES — northern territory of australia

northern territory of australia

As in force at 1 January 2022

Legal Profession Act 2006

An Act to provide for admission to, and the regulation of, the legal profession, and for entities relating to the legal profession, and for other purposes

Chapter 1IntroductionPart 1.1Preliminary matters 1Short title

This Act may be cited as the Legal Profession Act 2006.

2Commencement

This Act commences on the date fixed by the Administrator by Gazette notice.

3Main purposes of this Act

The main purposes of this Act are as follows:

• (a)

  to promote the administration of justice;

• (b)

  to provide for the protection of consumers of legal services and the public generally;

• (c)

  to regulate legal practice in this jurisdiction, including the legal practice of foreign law by foreign lawyers;

• (d)

  to facilitate the regulation of legal practice on a national basis.

Part 1.2Interpretation 4Definitions

In this Act:

Admission Board means the Legal Practitioners Admission Board of the Northern Territory established by section 650.

admission rules means rules relating to the admission of persons to the legal profession and associated matters made under section 43.

admission to the legal profession, see section 9.

affairs, of a law practice, includes the following:

• (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.

allow, for Part 3.5, see section 382.

amend includes:

• (a)

  in relation to a practising certificate:

  • (i)

    impose a condition on the certificate; or

  • (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; or

  • (ii)

    impose a condition on the registration; or

  • (iii)

    amend or revoke a condition already imposed on the registration.

application date, for Part 3.6, see section 438.

approved, for professional indemnity insurance, see section 373.

approved academic qualifications, see section 10.

approved ADI, for Part 3.1, see section 235(1).

approved form means a form approved under section 706.

approved practical legal training requirements, see section 10.

ASIC exemption, for Part 3.6, see section 438.

associate:

• (a)

  of a law practice – see section 7(1); or

• (b)

  of a legal practitioner, for Part 3.6 – see section 439.

Australia, for Part 2.7, see section 170.

Australian law, for Part 2.7, see section 170.

Australian lawyer, see section 5(a).

Australian legal practitioner, see section 6(a).

Australian practising certificate means a local practising certificate or interstate practising certificate.

Australian-registered foreign lawyer means a locally-registered foreign lawyer or interstate-registered foreign lawyer.

Australian roll means the local roll or an interstate roll.

Australian trust account means a local trust account or an interstate trust account.

barrister means:

• (a)

  a local legal practitioner who holds a current local practising certificate to practise as or in the manner of 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.

bill, for Part 3.3, see section 295(1).

borrower, for Part 3.6, see section 438.

business day means a day other than a Saturday, a Sunday or a public holiday.

capping and sufficiency provisions, for Part 3.5, see section 382.

chief executive officer, of the Law Society, means the person occupying or holding the office of chief executive officer established by section 640.

Chief Justice means the Chief Justice of the Supreme Court.

claim, see:

• (a)

  for Part 3.2 – section 289; or

• (b)

  for Part 3.5 – section 382.

claimant, for Part 3.5, see section 382.

client:

• (a)

  for Part 3.3, Division 7 – see section 329; or

• (b)

  for Part 3.3, Division 8 – see section 331; or

• (c)

  for Part 3.6 – see section 438; or

• (d)

  otherwise – includes a person to whom or for whom legal services are provided.

compensation order, see section 534.

complaint, see section 462.

complaint investigation, for Chapter 6, see section 617(d).

compliance certificate, see section 36(2).

complying community legal centre, see section 227.

concerted interstate default, for Part 3.5, see section 382.

conditional costs agreement, for Part 3.3, see section 295(1).

conditions means conditions, limitations or restrictions.

conduct, for Chapter 4, see section 462.

consumer dispute, see section 480.

contravene includes fail to comply with.

contributor,for Part 3.6, see section 438.

contributory mortgage, for Part 3.6, see section 438.

controlled money, for Part 3.1, see section 235(1).

controlled money account, for Part 3.1, see section 235(1).

conviction, see section 15.

corporation, for Part 2.6, see section 118.

corresponding academic qualifications, see section 10.

Corporations Act means the Corporations Act 2001 (Cth).

corresponding authority, see section 12.

corresponding disciplinary body, see section 13.

corresponding foreign law, see section 14(2).

corresponding law, see section 14(1).

corresponding practical legal training requirements, see section 10.

costs, for Part 3.3, see section 295(1).

costs agreement, for Part 3.3, see section 295(1).

costs assessment, for Part 3.3, see section 295(1).

costs assessor, for Part 3.3, see section 295(1).

Council means the Council of the Law Society established by section 638(1).

default, for Part 3.5, see section 382.

deposit record, for Part 3.1, see section 235(1).

designated persons, for Part 3.1, see section 235(1).

determination, for Part 3.3, Division 8, Subdivision 5, see section 351.

director, for Part 2.6, see section 118.

disbursements, for Part 3.3, see section 295(1).

disciplinary action, for Chapter 4, Part 4.13, see section 540.

disciplinary application, for Chapter 4, see section 462.

Disciplinary Tribunal means the Legal Practitioners Disciplinary Tribunal established by section 669.

dishonesty, for Part 3.5, see section 382.

disqualified person means any of the following persons whether the thing that has happened to the person happened before or after the commencement of this definition:

• (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;

• (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;

• (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;

• (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;

• (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;

• (f)

  a person who is the subject of an order under section 140 or 165 or under provisions of a corresponding law that correspond to section 140 or 165.

document means any record of information, and includes:

• (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 any part of the document; and

• (g)

  any part of such a copy, reproduction or duplicate.

employ, for Part 2.8, see section 226.

employment, for Part 3.2, see section 289.

engage, for Part 2.8, see section 226.

engage in legal practice includes practise law.

external examination, for Part 3.1, see section 235(1).

external examiner, for Part 3.1, see section 235(1).

external intervener, for Chapter 5, see section 567(1).

external intervention, for Chapter 5, see section 567(1).

external territory means a Territory of the Commonwealth (not being the Australian Capital Territory, the Jervis Bay Territory or the Northern Territory of Australia) for the government of which as a Territory provision is made by a Commonwealth Act.

fee, gain or reward includes any form of, and any expectation of, a fee, gain or reward.

Fidelity Fund means the Legal Practitioners Fidelity Fund established under section 385.

financial institution, for Part 3.6, see section 438.

financial year means a year ending on 30 June.

fixed costs provisions, for Part 3.3, see section 295(1).

foreign country means:

• (a)

  a country other than Australia; or

• (b)

  a state, province or other part of a country other than Australia.

foreign law, for Part 2.7, see section 170.

foreign law practice, for Part 2.7, see section 170.

foreign registration authority, for Part 2.7, see section 170.

foreign regulatory action, for Part 2.5, see section 102.

foreign roll means an official roll of lawyers (whether admitted, practising or otherwise) kept in a foreign country, but does not include a roll prescribed by the regulations or a kind of roll prescribed by the regulations.

Funds Management Committee means the Legal Practitioners Funds Management Committee established by section 659(1).

general trust account, for Part 3.1, see section 235(1).

graduate clerk means a person who:

• (a)

  is employed for at least 9 months in a law practice or as a government lawyer while completing a course of practical legal training; and

• (b)

  in the course of the employment provides legal services under the supervision of an Australian legal practitioner.

grant, of an interstate practising certificate, includes the issue of a practising certificate.

GST, see the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

home jurisdiction, see:

• (a)

  for an Australian legal practitioner – section 8(2);

• (b)

  for an Australian-registered foreign lawyer – section 8(3); or

• (c)

  for an associate of a law practice who is neither an Australian legal practitioner nor an Australian-registered foreign lawyer – section 8(4).

hospital, for Part 3.2, see section 289.

ILP compliance audit, for Chapter 6, see section 617(a).

inability, in relation to a person engaging in legal practice, means an inability arising wholly or principally from infirmity, injury or mental or physical illness.

incident, for Part 3.2, see section 289.

incorporated legal practice, see section 119.

information notice means a written notice to a person about a decision specifying:

• (a)

  the decision; and

• (b)

  the reasons for the decision; and

• (c)

  the rights of appeal available to the person in relation to the decision and the period within which the appeal must be made.

insolvent under administration means:

• (a)

  a person who is an undischarged bankrupt within the meaning of the Bankruptcy Act 1966 (Cth) (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 (Cth) (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 (Cth) (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 (Cth) (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 (Cth) (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.

interstate lawyer, see section 5(c).

interstate legal practitioner, see section 6(c).

interstate practising certificate means a current practising certificate granted under a corresponding law.

interstate-registered foreign lawyer means a person who is registered as a foreign lawyer under a corresponding law.

interstate roll means a roll of lawyers maintained under a corresponding law.

interstate trust account means a trust account maintained under a corresponding law.

investigation, for Part 3.1, see section 235(1).

investigator, see:

• (a)

  for Part 3.1 – section 235(1); or

• (b)

  for Chapter 6 – section 618.

itemised bill, for Part 3.3, see section 295(1).

jurisdiction means a State or Territory of the Commonwealth.

law firm means a partnership consisting only of:

• (a)

  Australian legal practitioners; or

• (b)

  one or more Australian legal practitioners and one or more Australian-registered foreign lawyers.

law practice means:

• (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.

Law Society means the Law Society Northern Territory established by section 635(1).

lay associate, see section 7(2)(b).

lay person means a person who is not an Australian lawyer.

legal costs means amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services including disbursements but not including interest.

legal practitioner, for Part 3.6, see section 438.

legal practitioner associate, see section 7(2)(a).

legal practitioner director, in relation to an incorporated legal practice, see section 118.

legal practitioner partner, in relation to a multi-disciplinary partnership, see section 118.

legal profession rules means rules relating to legal practice made under Part 8.1.

legal services means work done, or business transacted, in the ordinary course of legal practice.

lender, for Part 3.6, see section 438.

litigious matter, for Part 3.3, see section 295(1).

local lawyer, see section 5(b).

local legal practitioner, see section 6(b).

local practising certificate means a practising certificate granted under this Act.

local registration certificate, for Part 2.7, see section 170.

local roll, see section 27(1).

local trust account means a trust account maintained under this Act.

locally-registered foreign lawyer means a person who is registered as a foreign lawyer under this Act.

lump sum bill, for Part 3.3, see section 295(1).

managed investment scheme has the same meaning as in Chapter 5C of the Corporations Act.

member, of a managed investment scheme, for Part 2.7, see the Corporations Act.

modifications includes modifications by way of alteration, omission, addition and substitution.

mortgage means an instrument under which an interest in real property is charged, encumbered or transferred as security for the payment or repayment of money, and includes:

• (a)

  an instrument of a kind prescribed by the regulations as being a mortgage; and

• (b)

  a proposed mortgage.

mortgage financing means facilitating a loan secured or intended to be secured by mortgage by:

• (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, or under, the loan;

but does not include providing legal service or preparing an instrument for the loan.

multi-disciplinary partnership, see section 151.

Mutual Recognition Act means:

• (a)

  the Mutual Recognition Act 1992 (Cth); or

• (b)

  the Trans-Tasman Mutual Recognition Act 1997 (Cth).

officer, for Part 2.6, see section 118.

official complaint, for Chapter 4, see section 462.

overseas-registered foreign lawyer, for Part 2.7, see section 170.

pecuniary loss, for Part 3.5, see section 382.

permanent form, for Part 3.1, see section 235(1).

personal injury, for Part 3.2, see section 289.

potential claimant, for Part 3.2, see section 289.

power, for Part 3.1, see section 235(1).

practical legal training means either, or a combination of both, of the following:

• (a)

  legal training by participation in course work;

• (b)

  supervised legal training, whether involving articles of clerkship or otherwise.

practise foreign law, for Part 2.7, see section 170.

pre-admission event, in relation to an applicant for or holder of a local practising certificate, means a show cause event in relation to the applicant or holder before the applicant or holder was first admitted to the legal profession in this or another jurisdiction.

prescribed mediator means a person who, under the regulations, is permitted to conduct mediations of the type specified in the regulations.

principal, see section 7(3).

professional misconduct, see section 465.

professional obligations, for Part 2.6, see section 118.

public authority, for Part 3.3, see section 295(1).

Register, for Part 4.13, means the Register of Disciplinary Action mentioned in section 541.

registered, for Part 2.7, see section 170.

Registrar, see section 9(1) of the Supreme Court Act 1979.

regulated mortgage, for Part 3.6, see section 438.

regulated property, for Chapter 5, see section 567(1).

regulation means a regulation made under this Act.

Regulator, for Part 2.6, see section 118.

regulatory authority means:

• (a)

  in relation to this jurisdiction, the Law Society; or

• (b)

  in relation to another jurisdiction:

  • (i)

    if there is only one regulatory authority for the other jurisdiction – that regulatory authority, unless subparagraph (iii) applies; or

  • (ii)

    if there are separate regulatory authorities for the other jurisdiction for different branches of the legal profession or for persons who practise in a particular style of legal practice – the regulatory authority relevant to the branch or style concerned, unless subparagraph (iii) applies; or

  • (iii)

    if the regulations specify or provide for the determination of one or more regulatory authorities for the other jurisdiction either generally or for particular purposes – the regulatory authority or authorities specified or determination under the regulations.

related body corporate, for Part 2.6, see section 118.

related entity, in relation to a person, means:

• (a)

  if the person is a company within the meaning of the Corporations Act – a related body corporate within the meaning of section 50 of that Act; or

• (b)

  otherwise – a person specified or described by the regulations.

relevant jurisdiction, for Part 3.5, see section 396.

responsible entity, for Part 3.6, see section 438.

reviewer, for Part 3.3, Division 8, Subdivision 5, see section 351.

run-out mortgage, for Part 3.6, see section 438.

serious offence means an offence (whether committed in or outside this jurisdiction) that is:

• (a)

  an indictable offence against a law of the Commonwealth or any jurisdiction (whether or not the charge of 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 charge of 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 charge of the offence could be dealt with summarily if committed in this jurisdiction).

show cause event, in relation to a person, means:

• (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 (Cth); or

• (b)

  his or her presentation (as a debtor) of a declaration to the Official Receiver under section 54A of the Bankruptcy Act 1966 (Cth) 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 made an assignment of his or her remuneration for their benefit; or

• (d)

  his or her conviction for a serious offence or 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.

sole practitioner means an Australian legal practitioner who engages in legal practice on his or her own account.

solicitor means:

• (a)

  a local legal practitioner who holds a current local practising certificate to practise as a barrister and solicitor or a solicitor; 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.

sophisticated client, for Part 3.3, see section 295(1).

statutory deposit holder, see section 281(1).

Statutory Supervisor means the person holding or occupying the office of Statutory Supervisor established by section 678(1).

suitability matter, see section 11.

supervised legal practice means legal practice by a person who is an Australian legal practitioner:

• (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 mentioned 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 the legal profession rules.

supervising legal practitioner, see section 227(d).

tax offence means an offence under the Taxation Administration Act 1953 (Cth), whether committed in or outside this jurisdiction.

Territory regulated mortgage, for Part 3.6, see section 440.

Territory regulated mortgage practice, for Part 3.6, see section 438.

third party payer, for Part 3.3, see section 296.

this Act includes statutory instruments made under this Act.

this jurisdiction means the Territory.

transit money, for Part 3.1, see section 235(1).

trust account, see section 235(1).

trust account examination, for Chapter 6, see section 617(c).

trust account investigation, for Chapter 6, see section 617(b).

trust money, see section 235(1).

trust money protocols, see section 239(1).

trust property means property entrusted to a law practice in the course of or in connection with the provision of legal services by the practice, but does not include trust money or money referred to in section 236.

trust records, for Part 3.1, see section 235(1).

unrestricted practising certificate means an Australian practising certificate that is not subject to any condition under this Act or a corresponding law requiring the holder to engage in supervised legal practice or restricting the holder to practise as or in the manner of a barrister.

unsatisfactory professional conduct, see section 464.

uplift fee, for Part 3.3, see section 295(1).

Note for section 4

The Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act.

5Terms relating to lawyers

For 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.

6Terms relating to legal practitioners

For 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.

7Terms relating to associates and principals of law practices

• (1)

  For this Act, an associate of a law practice is:

  • (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 employee of, or consultant to, the law practice; or

  • (b)

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

  • (c)

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

  • (d)

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

  • (e)

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

  • (f)

    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.

• (2)

  For 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 is an associate of the practice who is not an Australian legal practitioner.

• (3)

  For this Act, a principal of a law practice is an Australian legal practitioner who is:

  • (a)

    a sole practitioner (in the case of a law practice constituted by the practitioner); or

  • (b)

    a partner in the law practice (in the case of a 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).

  8Home jurisdiction
• (1)

  This section has effect for this Act.

• (2)

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

• (3)

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

• (4)

  The home jurisdiction for an associate of a law practice who is neither an Australian legal practitioner nor an Australian-registered foreign lawyer is:

  • (a)

    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 the associate’s 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 cannot be determined under subparagraph (i) or (ii) – the jurisdiction decided in accordance with criteria specified or referred to in the regulations.

    9Admission to legal profession
• (1)

  Admission to the legal profession is admission under this Act or a corresponding law by a Supreme Court as:

  • (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.

• (2)

  However, admission to the legal profession does not include the grant of a practising certificate under this Act or a corresponding law.

10Academic qualifications and legal training requirements

• (1)

  Approved academic qualifications are academic qualifications approved, under the admission rules, for admission to the legal profession in this jurisdiction.

• (2)

  Approved practical legal training requirements are legal training requirements approved, under the admission rules, for admission to the legal profession in this jurisdiction.

• (3)

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

• (4)

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

• (5)

  For this section, the 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 the criteria were established consistently with relevant agreed standards.

• (6)

  Accordingly, the 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.

• (7)

  The regulations may identify or provide a way of identifying the agreed standards.

11Suitability matters

• (1)

  Each of the following is a suitability matter in relation to an individual:

  • (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;

  • (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;

    • (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;

  • (ga)

    whether the person has been found to have engaged in academic dishonesty (including, for example, plagiarism);

  • (h)

    whether the person’s name has been removed from:

    • (i)

      a local roll, and has not since been restored to or entered on a local roll; or

    • (ii)

      an interstate roll, and has not 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 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 currently has a material inability to engage in legal practice.

• (2)

  A matter is a suitability matter even if it happened before the commencement of this section.

• (3)

  If a charge or conviction is expunged under the Expungement of Historical Homosexual Offence Records Act 2018:

  • (a)

    the person is to be treated under this Act as if the person had never committed or been charged with, prosecuted for, convicted of or sentenced for the offence; and

  • (b)

    the expunged charge or conviction is not a suitability matter; and

  • (c)

    section 94 does not apply in respect of the expunged charge or conviction.

  12Corresponding authorities
• (1)

  A corresponding authority is:

  • (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), a person or body having corresponding powers or functions under a corresponding law.

• (2)

  Without limiting subsection (1)(b), 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 is a corresponding authority to the local authority.

• (3)

  Subsection (2) applies regardless of whether the powers or functions relate to interstate lawyers or interstate legal practitioners generally or are limited to any particular class of interstate lawyers or interstate legal practitioners.

13Corresponding disciplinary bodies

A corresponding disciplinary body is:

• (a)

  a court or tribunal having powers or functions under a corresponding law that correspond to any of the powers and functions of the Disciplinary 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.

  14Corresponding laws

• (1)

  A corresponding law is:

  • (a)

    a law of another jurisdiction that corresponds to the relevant provisions of this Act or, if a law of the other jurisdiction is declared by regulation to be a law that corresponds to this Act, the law declared for the other jurisdiction; or

  • (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.

• (2)

  A corresponding foreign law is:

  • (a)

    a law of a foreign country that corresponds to the relevant provisions of this Act or, if a law of the foreign country is declared by regulation to be a law that corresponds to this Act, the law declared for the foreign country; or

  • (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.

  15References to convictions for offences
• (1)

  A reference in this Act to a conviction includes a finding of guilt, whether or not a conviction is recorded.

• (2)

  Without limiting subsection (1), a reference to the quashing of a conviction for an offence includes a reference to the quashing of a finding of guilt in relation to the offence.

• (3)

  However, a reference to the quashing of a conviction for an offence does not include a reference to the quashing of a conviction if a finding of guilt in relation to the offence remains unaffected.

16Application of Criminal Code

Part IIAA of the Criminal Code applies to an offence against this Act.

Note for section 16

Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences.

Chapter 2General requirements for engaging in legal practicePart 2.1Reservation of legal work and legal titles 17Purposes of Part

The purposes of this Part are as follows:

• (a)

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

• (b)

  to protect consumers by ensuring persons carrying out legal work are entitled to do so.

18Prohibition on engaging in legal practice when not entitled

• (1)

  A person who is not an Australian legal practitioner must not engage in legal practice in this jurisdiction.

  Maximum penalty:          500 penalty units.

• (2)

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

  • (a)

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

  • (b)

    legal practice engaged in by an incorporated legal practice in accordance with Part 2.6;

  • (c)

    the practice of foreign law by an Australian-registered foreign lawyer in accordance with Part 2.7;

  • (d)

    legal practice engaged in by a complying community legal centre;

  • (e)

    carrying on business as a conveyancing agent or real estate agent under a licence under the Agents Licensing Act 1979;

  • (f)

    preparing wills or administering estates in the course of employment in the office of the Public Trustee;

  • (g)

    legal practice of a kind prescribed by the regulations.

• (3)

  It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that the defendant did not engage in the legal practice for fee, gain or reward.

• (4)

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

• (5)

  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).

• (6)

  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 paragraphs (a) and (b).

19Prohibition on representing or advertising entitlement to engage in legal practice when not entitled

• (1)

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

  Maximum penalty:          500 penalty units.

• (2)

  A person is guilty of an offence if:

  • (a)

    the person is a director, officer, employee or agent of a body corporate; and

  • (b)

    the person represents or advertises that the body corporate is entitled to engage in legal practice; and

  • (c)

    the body corporate is not an incorporated legal practice.

  Maximum penalty:          500 penalty units.

• (3)

  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 18(2).

• (4)

  A reference in this section to a person representing or advertising that the person or a body corporate is entitled to engage in legal practice includes a reference to the person doing anything that specifies or implies the person or body corporate is entitled to engage in legal practice.

20Presumptions about taking or using name, title or description

• (1)

  This section applies to the following names, titles and descriptions:

  • (a)

    lawyer or legal practitioner;

  • (b)

    barrister, solicitor or attorney;

  • (c)

    counsel, Queen’s Counsel, King’s Counsel, Her Majesty’s Counsel, His Majesty’s Counsel or Senior Counsel;

  • (d)

    another name, title or description prescribed by the regulations.

• (2)

  Subject to section 21, 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.

• (3)

  For section 19(1), 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 the person is entitled to engage in legal practice.

• (4)

  For section 19(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 the person represented the body corporate is entitled to engage in legal practice.

21Appointment of Queen's Counsel

• (1)

  The Chief Justice may appoint a local legal practitioner as a Queen’s Counsel or Senior Counsel.

• (2)

  An appointment must be made:

  • (a)

    under applicable rules of the Supreme Court; and

  • (b)

    only after consultation with:

    • (i)

      the Attorney-General; and

    • (ii)

      other Supreme Court Judges; and

    • (iii)

      the Law Society and Northern Territory Bar Association Incorporated; and

    • (iv)

      anyone else the Chief Justice considers appropriate.

• (3)

  The practitioner must pay the Territory the fee prescribed by the regulations.

• (4)

  In this section:

  Queen’s Counsel means one of Her Majesty’s Counsel for the Territory, and extends to King’s Counsel if appropriate.

22Schemes for specialist lawyers

Section 20 does not prevent:

• (a)

  the Law Society from establishing a merit based scheme for recognising and naming specialist lawyers; or

• (b)

  a lawyer who is named under the scheme as a particular type of specialist lawyer using that description.

23Contravention of Part by Australian lawyers who are not legal practitioners

• (1)

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

• (2)

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

Part 2.2Admission of local lawyersDivision 1Preliminary matters 24Purposes of Part

The purposes of this Part are as follows:

• (a)

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

• (b)

  to provide for the recognition of equivalent qualifications and training that make applicants eligible for admission to the legal profession in other jurisdictions.

Division 2Admission to legal profession 25Admission

• (1)

  A person may apply to the Supreme Court to be admitted as a local lawyer.

• (2)

  The Court may, after considering a recommendation of the Admission Board and any representations made by the Law Society, admit the person as a local lawyer if:

  • (a)

    the Court is satisfied:

    • (i)

      the person is eligible for admission to the legal profession; or

    • (ii)

      if the recommendation is made under section 29(2) – it is reasonable the person be admitted because the person has sufficient academic qualifications or sufficient relevant experience in legal practice or relevant service with an Agency; and

  • (b)

    the Court is satisfied the person is a fit and proper person to be admitted to the legal profession.

• (3)

  A recommendation of the Board may be contained in a compliance certificate.

• (4)

  The Court may refuse:

  • (a)

    to consider the application if it is not made in accordance with the admission rules; or

  • (b)

    to admit the person if the person has not complied with the admission rules.

  26Conditions of admission
• (1)

  The Supreme Court may:

  • (a)

    admit a person to the legal profession either unconditionally or on any conditions it considers appropriate; and

  • (b)

    vary or revoke any conditions on which a person is admitted to the legal profession under this Act.

  Example of conditions for subsection (1)(a)

  If the Court admits a person on a recommendation of the Admission Board made under section 29(2), the Court may admit the person on the conditions relating to the obtaining of further academic qualifications or further legal training the Court considers appropriate.

• (2)

  The Court may order the removal of a person’s name from the local roll for a contravention of a condition.

27Roll of persons admitted to legal profession

• (1)

  A Registrar must maintain a roll of persons admitted to the legal profession under this Act (the local roll).

• (2)

  If a person is admitted under this Act, the person’s name must be entered on the local roll under the admission rules.

• (3)

  A person admitted under this Act must sign the local roll.

• (4)

  The person’s admission under this Act takes effect when the person signs the local roll.

• (5)

  A Registrar must give the Law Society the name, date of birth and date of admission of each person admitted under this Act as soon as practicable after the person has signed the local roll.

• (6)

  A Registrar’s functions under this section must be exercised by the Registrar or other person or body designated by the Chief Justice for the purpose.

• (7)

  The regulations may make provision for or with respect to the following:

  • (a)

    the information that may or must be included in the local roll;

  • (b)

    publication of information contained in the local roll.

  28Local lawyer is officer of Supreme Court
• (1)

  A person becomes an officer of the Supreme Court on being admitted as a local lawyer under this Act.

• (2)

  A person ceases to be an officer of the Court under subsection (1) if the person’s name is removed from the local roll.

Division 3Eligibility and suitability for admission 29Eligibility for admission

• (1)

  A person is eligible for admission to the legal profession under this Act only if:

  • (a)

    the person is an individual aged 18 years or over; and

  • (b)

    the person has attained:

    • (i)

      approved academic qualifications; or

    • (ii)

      corresponding academic qualifications; and

  • (c)

    the person has satisfactorily completed:

    • (i)

      approved practical legal training requirements; or

    • (ii)

      corresponding practical legal training requirements.

• (2)

  However, the Admission Board may recommend the Supreme Court admit a person even if the person does not satisfy the requirements of subsection (1)(b) or (c), or both of those requirements, if the Board is satisfied it is reasonable that the person be admitted because the person has sufficient academic qualifications or sufficient relevant experience in legal practice or relevant service with an Agency.

• (3)

  The Board may recommend the person be admitted unconditionally or subject to conditions relating to the obtaining of further academic qualifications or further legal training.

30Suitability for admission

• (1)

  The Supreme Court or Admission Board must, in deciding if a person is a fit and proper person to be admitted to the legal profession under this Act, consider:

  • (a)

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

  • (b)

    any other matter it considers relevant.

• (2)

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

31Early consideration of suitability

• (1)

  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.

• (2)

  The Board must give written notice to the Law Society of the application.

• (3)

  The Board must consider the application and, subject to section 32, make the declaration sought or refuse to do so.

• (4)

  If the Board makes the declaration it must give the Law Society a copy of the declaration.

• (5)

  If the Board refuses to make the declaration it must:

  • (a)

    give the applicant an information notice for the decision; and

  • (b)

    give the Society written notice of the decision.

  32Referral of matters to Supreme Court
• (1)

  The Admission Board may refer the issue of whether or not an applicant is a fit and proper person to be admitted to the Supreme Court for decision if, in the Board’s opinion, it would be appropriate for the Court to consider the issue.

• (2)

  The Board also may refer to the Court an application for a declaration under section 31 if, in the Board’s opinion, it would be appropriate for the Court to consider the application.

• (3)

  The Court has the same powers as the Board to deal with an application referred to it under this section and its decision on an application is taken to be a decision of the Board.

• (4)

  On a referral under this section, the Court may make the order or declaration it considers appropriate.

33Binding effect of declaration or order

A declaration or order made under section 31(3) or 32(4) is binding on the Admission Board unless the applicant failed to make a full and fair disclosure of all matters relevant to the declaration sought.

34Entitlement to be represented, heard and make representations

• (1)

  The Admission Board is not a respondent to an application for admission to the legal profession under this Act.

• (2)

  The Law Society and an applicant for admission to the legal profession under this Act or a declaration under section 31 are entitled to:

  • (a)

    make written representations to the Board in relation to any matter under consideration by the Board under this Division; and

  • (b)

    be represented and heard at any appeal under Division 5.

• (3)

  The Society is entitled to:

  • (a)

    make written representations to the Supreme Court on an application for admission to the legal profession under this Act or a matter referred to the Court under section 32; and

  • (b)

    be represented and heard on the hearing of the application or reference.

  Division 4Powers and functions of Admission Board  

35Admission Board to advise on application for admission

The role of the Admission Board is to advise the Supreme Court whether or not the Board considers:

• (a)

  an applicant for admission to the legal profession under this Act is:

  • (i)

    eligible for admission; and

  • (ii)

    a fit and proper person to be admitted, including having regard to all suitability matters in relation to the applicant to the extent appropriate; and

• (b)

  the application conforms with the requirements of the admission rules.

36Compliance certificates

• (1)

  This section applies if, after considering an application for admission to the legal profession under this Act, the Admission Board considers:

  • (a)

    the applicant is:

    • (i)

      eligible for admission; and

    • (ii)

      a fit and proper person to be admitted; and

  • (b)

    the application conforms with the requirements of the admission rules and there are no grounds for refusing to give a certificate for the applicant.

• (2)

  The Board must, within the time specified in or determined under the regulations, advise the Supreme Court to that effect by filing with a Registrar a certificate in the approved form (a compliance certificate).

• (3)

  The Board must give the Law Society a copy of the compliance certificate.

• (4)

  If the Board refuses to give a compliance certificate for the applicant, the Board must, within the time specified in or determined under the regulations, give:

  • (a)

    a Registrar notice about the refusal; and

  • (b)

    the applicant an information notice about the refusal.

• (5)

  If the Board does not comply with subsections (3) and (4), the Board is taken to have:

  • (a)

    decided to refuse to give a compliance certificate; and

  • (b)

    given an information notice about the refusal at the end of the time specified in or determined under the admission rules for deciding the application.

  37Consideration of applicant's eligibility and suitability
• (1)

  To help it consider whether or not an applicant is eligible for admission to the legal profession under this Act or is a fit and proper person to be admitted under this Act, 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 cooperate with any inquiries by the Board that it considers appropriate.

• (2)

  The applicant’s failure to comply with the notice by the date specified in the notice, and in the way required by the notice, is a ground for refusing to give a compliance certificate for the applicant.

• (3)

  The Board may refer a matter to the Supreme Court for directions.

  Note for section 37

  Under section 94, the Admission Board may obtain a police report about the applicant’s criminal history. Also, under section 95, the Admission Board may require the applicant to undergo a health assessment.

Division 5Appeals 38Appeals

• (1)

  An applicant for a declaration under section 31 may appeal to the Supreme Court against a decision of the Admission Board to refuse to make the declaration.

• (2)

  An applicant for admission may appeal to the Court against a decision of the Board under section 36 to refuse to give a compliance certificate for the applicant.

• (3)

  The Law Society may appeal to the Court against the following decisions:

  • (a)

    a decision under section 31 to make a declaration sought under the section;

  • (b)

    a decision under section 36 to give a compliance certificate.

• (4)

  An appeal under this section must be started by filing notice of appeal:

  • (a)

    for an appeal under subsection (1) or (2) – within 28 days after the appellant receives the information notice for the decision; or

  • (b)

    for an appeal under subsection (3) – within 28 days after the decision is made.

• (5)

  The notice of appeal must state fully the grounds of appeal.

• (6)

  An appeal under this section must be by way of rehearing and fresh evidence or evidence in addition to or in substitution for the evidence before the Board may be given on the appeal.

• (7)

  On hearing an appeal under this section, the Court may make the order or declaration it considers appropriate.

Division 6Miscellaneous matters 39Mutual recognition local registration authority

For a Mutual Recognition Act, the Admission Board is the local registration authority for an application for registration under that Act so far as the application relates to the admission of a person to engage in legal practice in the Territory.

40Certificate of admission

A Registrar must issue a certificate of admission to a person admitted as a local lawyer under this Part.

41Joinder of parties and counsel assisting

• (1)

  The Supreme Court may, on application made to it, grant leave to a person to be joined as a party to an application for admission to the legal profession under this Act or a reference under section 32.

• (2)

  In addition, the Court may appoint counsel to assist it in deciding the application or reference.

42Costs relating to applications and referrals

• (1)

  The Supreme Court may order the costs of counsel appointed to assist in an application for admission to the legal profession under this Act or a reference under section 32, as certified by the Solicitor for the Northern Territory, to be paid out of the Fidelity Fund.

• (2)

  In addition, the Court may order the costs of the Law Society, as certified by the Solicitor for the Northern Territory, to be paid out of the Fidelity Fund:

  • (a)

    for an appeal by it under Division 5; or

  • (b)

    if it is heard on an application for admission to the legal profession under this Act or a reference under section 32.

• (3)

  However, the Court must not make an order under subsection (2) if it is satisfied the Society has acted unreasonably in relation to the appeal, application or reference.

43Admission rules

• (1)

  The Judges appointed under section 32(1) of the Supreme Court Act 1979 who are not additional Judges, or a majority of them, may make rules, not inconsistent with this Act, for the admission of persons to the legal profession under this Act.

• (2)

  Rules may be made about any of the following:

  • (a)

    the procedure for admission, including:

    • (i)

      how an application must 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; and

    • (iv)

      the keeping and signing of the local roll and the particulars to be recorded on the roll; and

    • (v)

      the oath of office to be taken by a local lawyer;

  • (b)

    admission requirements regarding, and the approval of, academic qualifications and practical legal training;

  • (c)

    the examination of candidates 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)

    examinations in academic subjects of candidates for registration as students-at-law or of applicants for admission;

  • (j)

    the establishment and conduct of 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 are fit and proper persons to be admitted;

  • (k)

    authorising the Admission Board to exempt a person from the requirements of:

    • (i)

      section 29(1)(b) to the extent the person has engaged in relevant studies in a foreign country to the satisfaction of the Board; or

    • (ii)

      section 29(1)(c) to the extent the person has completed a period of relevant service with a government department or other government agency (including, for example, service in courts administration) to the satisfaction of the Board;

  • (l)

    accreditation of legal education and practical legal training courses;

  • (m)

    any other matters relating to the Board’s functions.

• (3)

  Rules may provide for abridging, in specified circumstances, any period of practical legal training required by the rules.

• (4)

  Despite anything to the contrary in the rules, the Board must:

  • (a)

    give the Law Society a copy of each application for admission to the legal profession under this Act; and

  • (b)

    give the Society and any other person granted leave to be joined as a party to the application a copy of all other documents relevant to the application.

• (5)

  The 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 under the rules.

Part 2.3Legal practice by Australian legal practitionersDivision 1Preliminary matters 44Purposes of Part

The purposes of this Part are as follows:

• (a)

  to facilitate the national practice of law by ensuring 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.

Division 2Legal practice in this jurisdiction by Australian legal practitioners 45Entitlement of holder of Australian practising certificate to practise in this jurisdiction

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

Division 3Local practising certificates generally 46Local practising certificates

• (1)

  Practising certificates may be granted under this Part.

• (2)

  The regulations may prescribe the categories of local practising certificates.

• (3)

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

47Suitability to hold local practising certificate

• (1)

  This section has effect for section 54 or another provision of this Act if the question of whether or not a person is a fit and proper person to hold a local practising certificate is relevant.

• (2)

  The Law Society may, in considering whether or not a 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 Disciplinary 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 of, or imposed under, this Act about professional indemnity insurance; or

    • (iii)

      whether the person has failed to pay other costs or expenses for which the person is liable under this Act;

  • (f)

    other matters the Society considers appropriate.

• (3)

  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 Society considers the circumstances warrant the decision.

• (4)

  A matter cannot be taken into account as a ground for refusing to grant or renew or for suspending or cancelling a local practising certificate if the matter was:

  • (a)

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

  • (b)

    decided by a Supreme Court or by the Admission Board or a corresponding authority not to be sufficient for refusing admission.

• (5)

  Subsection (4) does not apply if later disclosures demonstrate the matter is part of a course of conduct that may warrant refusal, suspension or cancellation.

  Note for section 47

  Under section 94, the Admission Board may obtain a police report about the applicant’s criminal history. Also, under section 95, the Admission Board may require the applicant to undergo a health assessment.

48Duration of local practising certificate

• (1)

  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.

• (2)

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

• (3)

  If an application for the renewal of a local practising certificate has not been decided by the following 1 July, the certificate:

  • (a)

    continues in force on and from that 1 July until the Law Society 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.

  49Local legal practitioner is officer of Supreme Court
• (1)

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

• (2)

  A person ceases to be an officer of the Court under subsection (1) if the person ceases to hold a local practising certificate.

Division 4Grant or renewal of local practising certificates 50Who may apply for grant or renewal of local practising certificate

• (1)

  An Australian lawyer may apply to the Law Society for the grant or renewal of a local practising certificate if eligible to do so under this section.

• (2)

  An Australian lawyer is eligible to apply for the grant or renewal of a local practising certificate if the lawyer complies with 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 decide whether it applies to the lawyer – the lawyer’s place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia; or

  • (b)

    in the case of a lawyer who is an Australian legal practitioner at the time of making the application:

    • (i)

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

    • (ii)

      the lawyer holds a current local practising certificate and engages in legal practice in another jurisdiction under an arrangement 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 subparagraph (i), (ii) or (iii) does not apply to the lawyer or it is not reasonably practicable to decide whether subparagraph (i), (ii) or (iii) applies to the lawyer – the lawyer’s place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia.

• (3)

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

  • (a)

    the application is made; or

  • (b)

    in the case of a late application – the application should have been made.

• (4)

  An Australian lawyer is not eligible to apply for the grant or renewal of a local practising certificate in 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.

• (5)

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

• (6)

  An Australian legal practitioner who:

  • (a)

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

  • (b)

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

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

• (7)

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

• (8)

  The exemption provided by subsection (7) ceases to operate at the end of the period prescribed by the regulations for this subsection.

• (9)

  A reference in this section to engaging in legal practice principally in this or any other jurisdiction applies only to legal practice in Australia.

• (10)

  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.

51Making application and fees

• (1)

  An application for the grant or renewal of a local practising certificate must be:

  • (a)

    made under the regulations in the approved form; and

  • (b)

    accompanied by the information required by the regulations; and

  • (c)

    accompanied by the fee prescribed by the regulations.

• (2)

  On receipt of the application, the Law Society must pay the fee paid under subsection (1)(c) to the Funds Management Committee.

• (3)

  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.

• (4)

  The regulations may indicate that particular kinds of matters previously disclosed in a particular way need not be disclosed for the current application.

• (5)

  Without limiting subsection (3), the regulations may require the applicant to disclose details of, or details of the nature of, pre-admission events.

52Timing of application for renewal of local practising certificate

• (1)

  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)

    the later period prescribed by the regulations as the late fee period.

• (2)

  Those periods must be within the currency of the local practising certificate being sought to be renewed.

• (3)

  The Law Society may reject an application for renewal made during the late fee period, and must reject an application for renewal made outside those periods unless the Society accepts the application under subsection (4).

• (4)

  The Society may accept an application made within 6 months after that period (even after the expiry of the local practising certificate being sought to be renewed) if satisfied the delay was caused by reasons beyond the control of the applicant or other special circumstances exist warranting acceptance of the application.

• (5)

  For an application accepted under subsection (4) after the expiry of the local practising certificate on 30 June in the year concerned, the certificate:

  • (a)

    is taken to have continued in force on and from the 1 July immediately following its expiry until the Society renews or refuses to renew the certificate or the holder withdraws the application for renewal, unless the certificate is sooner suspended or cancelled; and

  • (b)

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

  53Late fee
• (1)

  Subsection (2) applies if an application for renewal of a local practising certificate is made during the late fee period prescribed by the regulations.

• (2)

  Payment of the late fee may, if the Law Society considers it appropriate, be required as a condition of acceptance of the application.

54Grant or renewal of local practising certificate

• (1)

  The Law Society 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.

• (2)

  In granting or renewing the certificate, the Society may impose conditions mentioned in section 70.

• (3)

  The Society may refuse:

  • (a)

    to consider an application if:

    • (i)

      it is not made in accordance with this Act; or

    • (ii)

      the required fees and costs have not been paid; or

  • (b)

    to grant or renew a local practising certificate if the applicant has not complied with the regulations in relation to the application.

• (4)

  The Society must not grant a local practising certificate unless it is satisfied the applicant:

  • (a)

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

  • (b)

    is a fit and proper person to hold the certificate.

• (5)

  The Society must not renew a local practising certificate if it is satisfied 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.

• (6)

  The Society must not grant or renew a local practising certificate if the Society considers:

  • (a)

    the applicant’s circumstances have changed since the application was made; and

  • (b)

    the applicant would, having regard to information that has come to the Society’s attention, not have been eligible to make the application when the application is being considered.

• (7)

  Without limiting another provision of this section, the Society may refuse to grant or renew a local practising certificate if:

  • (a)

    the applicant is required by this Act to contribute to the Fidelity Fund and the application is not accompanied by the contribution payable; or

  • (b)

    any levy payable by the applicant under Part 3.5 is unpaid; or

  • (c)

    the Society is not satisfied the law practice in respect of which the applicant is:

    • (i)

      a sole practitioner (in the case of a law practice constituted by the practitioner); or

    • (ii)

      a partner (in the case of a law firm); or

    • (iii)

      a legal practitioner director (in the case of an incorporated legal practice); or

    • (iv)

      a legal practitioner partner (in the case of a multi-disciplinary partnership); or

    • (v)

      an employee of, or consultant to;

  has approved professional indemnity insurance; or

  • (d)

    the applicant is in breach of a condition imposed under section 70.

• (8)

  If the Society grants or renews a local practising certificate, the Society 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.

• (9)

  If the Society:

  • (a)

    refuses to grant or renew a local practising certificate; or

  • (b)

    imposes a condition on the certificate;

  the Society must, as soon as practicable, give the applicant an information notice.

Division 5Amendment, suspension or cancellation of local practising certificates 55Application of Division

This Division does not apply in relation to matters mentioned in Division 6.

56Grounds for amending, suspending or cancelling local practising certificate

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

• (a)

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

• (b)

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

• (c)

  if a condition of the certificate is that the holder is or has been limited to legal practice specified in the certificate – the holder is engaging in legal practice that the holder is not entitled to engage in under this Act.

57Amending, suspending or cancelling local practising certificate

• (1)

  If the Law Society believes a ground exists to amend, suspend or cancel a local practising certificate (the proposed action), the Society must give the holder a notice that:

  • (a)

    specifies the proposed action and:

    • (i)

      if the proposed action is to amend the certificate – specifies the proposed amendment; and

    • (ii)

      if the proposed action is to suspend the certificate – specifies the proposed suspension period; and

  • (b)

    specifies the grounds for proposing to take the proposed action; and

  • (c)

    outlines the facts and circumstances that form the basis for the Society’s belief; and

  • (d)

    invites the holder to make written representations to the Society, within a specified time of at least 7 days and not more than 28 days, as to why the proposed action should not be taken.

• (2)

  If, after considering all written representations made within the specified time and, in its discretion, written representations made after the specified time, the Society still believes a ground exists to take the proposed action, the Society may:

  • (a)

    if the notice specified the proposed action was to amend the practising certificate – amend the certificate in the way specified or in a less onerous way the Society considers appropriate because of the representations; or

  • (b)

    if the notice specified the proposed action was to suspend the practising certificate for a specified period:

    • (i)

      suspend the certificate for a period no longer than the specified period; or

    • (ii)

      amend the certificate in a less onerous way the Society considers appropriate because of the representations; or

  • (c)

    if the notice specified the proposed action was to cancel the practising certificate:

    • (i)

      cancel the certificate; or

    • (ii)

      suspend the certificate for a period; or

    • (iii)

      amend the certificate in a less onerous way the Society considers appropriate because of the representations.

• (3)

  If the Society decides to amend, suspend or cancel the practising certificate, the Society must give the holder an information notice for the decision.

• (4)

  In this section:

  amend, a certificate, means amend the certificate under section 70 during its currency, other than at the request of the holder of the certificate.

58Operation of amendment, suspension or cancellation of local practising certificate

• (1)

  This section applies if a decision is made to amend, suspend or cancel a local practising certificate under section 57.

• (2)

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

  • (a)

    the day notice of the decision is given to the holder;

  • (b)

    the day specified in the notice.

• (3)

  If the practising certificate is amended, suspended or cancelled because the holder has been convicted of an offence:

  • (a)

    the Supreme Court may, on the application of the holder, order that the operation of the amendment, suspension or cancellation of the practising certificate be stayed until:

    • (i)

      the end of the time to appeal against the conviction; and

    • (ii)

      if an appeal is made against the conviction – the appeal is finally decided, lapses or otherwise ends; and

  • (b)

    the amendment, suspension or cancellation does not have effect during any period in relation to which the stay is in force.

• (4)

  If the practising certificate is amended, suspended or cancelled because the holder has been convicted of an offence and the conviction is quashed:

  • (a)

    the amendment or suspension ceases to have effect when the conviction is quashed; or

  • (b)

    the cancellation ceases to have effect when the conviction is quashed and the certificate is restored as if it had merely been suspended.

  59Other ways of amending or cancelling local practising certificate
• (1)

  The Law Society may amend or cancel a local practising certificate if the holder requests the Society to do so.

• (2)

  The Society may amend a local practising certificate:

  • (a)

    for a formal or clerical reason; or

  • (b)

    in another way that does not adversely affect the holder’s interests.

• (3)

  The Society must cancel a local practising certificate if:

  • (a)

    the holder’s name has been removed from the local roll; or

  • (b)

    the holder ceases to be an Australian lawyer.

• (4)

  The amendment or cancellation of a local practising certificate under this section is effected by written notice given to the holder.

• (5)

  Section 57 does not apply in a case to which this section applies.

60Relationship of this Division with Chapter 4

Nothing in this Division prevents a complaint being made under Chapter 4 about a matter to which this Division relates.

Division 6Special powers in relation to local practising certificates show cause events 61Applicant for local practising certificate – show cause event

• (1)

  This section applies if:

  • (a)

    a person is applying for the grant of a local practising certificate; and

  • (b)

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

• (2)

  As part of the application, the person must give to the Law Society a written statement under the regulations:

  • (a)

    about the show cause event; and

  • (b)

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

• (3)

  However, the person need not provide a statement under subsection (2) if the person (as a previous applicant for a local practising certificate or as the holder of a local practising certificate previously in force) has previously provided to the Society:

  • (a)

    a statement under this section; or

  • (b)

    a notice and statement under section 62;

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

62Holder of local practising certificate – show cause event

• (1)

  This section applies to a show cause event that happens in relation to the holder of a local practising certificate.

• (2)

  The holder must provide to the Law Society both of the following:

  • (a)

    within 7 days after the happening of the event – notice, in the approved form, that the event happened;

  • (b)

    within 28 days after the happening of the event – a written statement explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to hold a local practising certificate.

• (3)

  If a written statement is provided after the 28 days mentioned in subsection (2)(b), the Society may accept the statement and take it into consideration.

63Refusal, amendment, suspension or cancellation of local practising certificate – failure to show cause

• (1)

  The Law Society may refuse to grant or renew, or may amend, suspend or cancel, a local practising certificate if the applicant or holder:

  • (a)

    is required by section 61 or 62 to provide a notice or written statement about a show cause event and has failed to provide a written statement under the requirement; or

  • (b)

    has provided a written statement under section 61 or 62 but, in the Society’s opinion, the statement is not a genuine or reasonable attempt to show that the applicant or holder is a fit and proper person to hold a practising certificate; or

  • (c)

    has failed without reasonable excuse to comply with a requirement under Chapter 6 made in connection with an investigation of the show cause event concerned or has committed an offence under that Part in connection with any such investigation.

• (2)

  For this section only, a written statement accepted by the Society under section 62(3) is taken to have been provided under section 62.

• (3)

  The Society must give the applicant or holder an information notice for the decision to refuse to grant or renew, or to amend, suspend or cancel, the certificate.

64Restriction on making further applications

• (1)

  This section applies if the Law Society decides under section 63 to:

  • (a)

    refuse to grant or renew a local practising certificate to a person; or

  • (b)

    cancel a person’s local practising certificate.

• (2)

  The Society may also decide the person is not entitled to apply for the grant of a local practising certificate for a specified period not exceeding 5 years.

• (3)

  If the Society makes a decision under subsection (2), the Society must include the decision in the information notice required under section 63(3).

• (4)

  A person in respect of whom a decision has been made under this section, or under a provision of a corresponding law, is not entitled to apply for the grant of a local practising certificate during the period specified in the decision.

65Relationship of this Division with Part 46 and Chapter 6

• (1)

  The Law Society has and may exercise powers under Part 4.6 and Chapter 6, in relation to a matter under this Division as if the matter were the subject of a complaint under Chapter 4.

• (2)

  Accordingly, Part 4.6 and Chapter 6 apply (with the necessary modifications) in relation to a matter under this Division.

• (3)

  Nothing in this Division prevents a complaint being made under Chapter 4 about a matter to which this Division relates.

Division 7Further provisions relating to local practising certificates 66Immediate suspension of local practising certificate

• (1)

  This section applies if the Law Society considers it necessary in the public interest to immediately suspend a local practising certificate on:

  • (a)

    any of the grounds on which the certificate could be suspended or cancelled under Division 5; or

  • (b)

    the ground of the happening of a show cause event in relation to the holder; or

  • (c)

    another ground that the Society considers warrants suspension of the local practising certificate in the public interest.

• (2)

  This section applies whether or not any action has been taken or started under Division 5 or 6 in relation to the holder.

• (3)

  The Society may, by written notice given to the holder, immediately suspend the practising certificate until the earlier of the following:

  • (a)

    the time at which the Society informs the holder of the Society’s decision by notice under section 57;

  • (b)

    the end of the period of 56 days after the notice is given to the holder under this section.

• (4)

  The notice under this section must:

  • (a)

    include an information notice about the suspension; and

  • (b)

    specify that the holder may make written representations to the Society about the suspension.

• (5)

  The holder may make written representations to the Society about the suspension and the Society must consider the representations.

• (6)

  The Society may revoke the suspension at any time, whether or not in response to any written representations made to it by the holder.

• (7)

  This section does not prevent the Society from making a complaint under Chapter 4 about a matter to which this section relates.

• (8)

  The suspension of a local practising certificate under this section does not affect any disciplinary processes in relation to matters arising before the suspension.

67Surrender and cancellation of local practising certificate

• (1)

  The holder of a local practising certificate may surrender the certificate to the Law Society.

• (2)

  The Society may cancel the certificate.

68Return of local practising certificate

• (1)

  This section applies if a local practising certificate granted to an Australian legal practitioner:

  • (a)

    is amended, suspended or cancelled by the Law Society; or

  • (b)

    is replaced by another certificate.

• (2)

  The Society may give the practitioner a notice requiring the practitioner to return the certificate to the Society in the way specified in the notice within a specified period of not less than 14 days.

• (3)

  The practitioner must comply with the notice.

  Maximum penalty:          20 penalty units.

• (4)

  It is a defence to a prosecution for an offence against subsection (3) if the practitioner has a reasonable excuse.

• (5)

  The Society must:

  • (a)

    if the certificate is amended – give the practitioner the amended certificate or a replacement certificate as soon as practicable after the amendment is made; or

  • (b)

    if the certificate is replaced – give the practitioner the replacement certificate as soon as practicable after it is issued; or

  • (c)

    if the certificate is suspended and is still current at the end of the suspension period – give the practitioner the amended certificate or a replacement certificate as soon as practicable after the end of the suspension period.

  Division 8Conditions on local practising certificates  

69Conditions generally

• (1)

  A local practising certificate is subject to:

  • (a)

    any conditions imposed by the Law Society; and

  • (b)

    any statutory conditions imposed by this or any other Act; and

  • (c)

    any conditions imposed by or under the regulations or legal profession rules; and

  • (d)

    any conditions imposed or varied by the Disciplinary Tribunal under section 71; and

  • (e)

    any conditions imposed under Chapter 4 or under provisions of a corresponding law that correspond to Chapter 4.

• (2)

  If a condition is imposed, varied or revoked under this Act (other than a statutory condition) during the currency of the local practising certificate concerned, the certificate must be amended by the Society, or a new certificate must be issued by the Society, to reflect on its face the imposition, variation or revocation.

70Conditions imposed by Law Society

• (1)

  The Law Society may impose conditions on a local practising certificate:

  • (a)

    when it is granted or renewed; or

  • (b)

    during its currency.

• (2)

  A condition imposed under this section must be reasonable and relevant.

• (3)

  A condition imposed under this section may be about any of the following:

  • (a)

    requiring the holder of the practising certificate to undertake and complete:

    • (i)

      continuing legal education prescribed by the regulations; or

    • (ii)

      specific legal education or training; or

    • (iii)

      a period of supervised legal practice;

  • (b)

    restricting the areas of law practised;

  • (c)

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

  • (d)

    restricting the holder to particular conditions concerning employment or supervision;

  • (e)

    requiring the holder to undergo counselling or medical treatment or to act in accordance with medical advice given to the holder;

  • (f)

    requiring the holder to use the services of an accountant or other financial specialist in connection with the holder’s practice;

  • (g)

    requiring the holder to provide the Society with evidence as to any outstanding tax obligations of the holder and as to provision made by the holder to satisfy any such outstanding obligations;

  • (h)

    a matter agreed to by the holder.

• (4)

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

• (5)

  The Society must not impose a condition requiring the holder to undertake and complete specific legal education or training unless:

  • (a)

    the Society is satisfied it is reasonable to require the education or training to be undertaken having regard to:

    • (i)

      the nature or currency of the holder’s academic studies, legal training or legal experience; or

    • (ii)

      the holder’s conduct; or

  • (b)

    the condition is one that is imposed generally on holders of local practising certificates or any class of holders of local practising certificates.

  Note for subsection (5)(b)

  A class of holders might comprise newly qualified lawyers or lawyers returning to legal practice after suspension or an extended break.

• (6)

  The Society may vary or revoke conditions imposed under this section.

• (7)

  If the Society imposes, varies or revokes a condition during the currency of the local practising certificate concerned, the imposition, variation or revocation takes effect when the holder has been notified of it or a later time specified by the Society.

• (8)

  This section has effect subject to section 57 in relation to the imposition of a condition on a local practising certificate during its currency.

71Imposition or variation of conditions pending criminal proceedings

• (1)

  If a local legal practitioner has been charged with a relevant offence but the charge has not been decided, the Law Society may apply to the Disciplinary Tribunal for an order under this section.

• (2)

  On the application, the Tribunal, if it considers it appropriate to do so having regard to the seriousness of the offence and to the public interest, may make either or both of the following orders:

  • (a)

    an order varying the conditions on the practitioner’s local practising certificate;

  • (b)

    an order imposing further conditions on the practitioner’s local practising certificate.

• (3)

  An order under this section has effect until the sooner of:

  • (a)

    the end of the period specified by the Tribunal; or

  • (b)

    if the practitioner is convicted of the offence – 28 days after the day of the conviction; or

  • (c)

    if the charge is dismissed – the day of the dismissal.

• (4)

  The Tribunal, on application by any party, may vary or revoke an order under this section at any time.

• (5)

  In this section:

  relevant offence means a serious offence or an offence that would have to be disclosed under the admission rules in relation to an application for admission to the legal profession under this Act.

72Statutory condition regarding conditions imposed on interstate admission

It is a statutory condition of a local practising certificate that the holder must not contravene a condition that was imposed on the admission of the person to the legal profession under a corresponding law (with any variations of the condition made from time) and that is still in force.

73Statutory condition regarding practice – general

• (1)

  It is a statutory condition of a local practising certificate that the holder must engage in supervised legal practice only until the holder has completed:

  • (a)

    if the holder completed practical legal training principally under the supervision of an Australian lawyer (whether involving articles of clerkship, graduate clerk or otherwise) to qualify for admission to the legal profession in this or another jurisdiction – a period or periods equivalent to 18 months supervised legal practice after the day the holder’s first practising certificate was granted; or

  • (b)

    if the holder completed other practical legal training to qualify for admission to the legal profession in this or another jurisdiction – a period or periods equivalent to 2 years supervised legal practice after the day the holder’s first practising certificate was granted.

• (2)

  For subsection (1), the period or periods must be worked out under the regulations.

• (3)

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

• (4)

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

  • (a)

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

  • (b)

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

• (5)

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

• (6)

  In this section:

  engage in supervised legal practice includes:

  • (a)

    employment as a government lawyer as defined in section 90(5); and

  • (b)

    employment by a complying community legal centre under the supervision of a supervising legal practitioner.

  74Statutory condition regarding practice as barrister

  The regulations or legal profession rules may make provision for or with respect to prohibiting the holder of a local practising certificate as a barrister (but not a barristerand solicitor ) from the following:

  • (a)

    engaging in legal practice:

    • (i)

      otherwise than as a sole practitioner; or

    • (ii)

      in partnership with any person; or

    • (iii)

      as the employee of any person;

  • (b)

    holding office as a legal practitioner director of an incorporated legal practice.

  75Additional conditions on practising certificates of barristers
• (1)

  The Law Society may, under section 70, impose conditions of the following kinds on the practising certificate of a barrister:

  • (a)

    a condition requiring the holder to undertake and complete to the Society’s satisfaction a full-time component or other component of a reading program applicable to the holder and decided or approved by:

    • (i)

      the Society; or

    • (ii)

      other body decided by the Statutory Supervisor;

  • (b)

    a condition requiring the holder to:

    • (i)

      read with a barrister of a specified class or description chosen by the holder (including a barrister chosen from a list of at least 10 barristers kept by the Society for the purpose) for a specified period; and

    • (ii)

      comply with the requirements that will enable the barrister, at the end of the specified period, to certify to the Society that the holder is fit to practise as a barrister without restriction.

• (2)

  A condition of a kind mentioned in subsection (1) imposed on the practising certificate of a barrister may limit the barrister’s practising rights until the condition is complied with.

• (3)

  Subject to section 74, the Society may, under section 70, impose conditions of a kind mentioned in the section on a local practising certificate granted to a barrister (but not a barrister and solicitor).

• (4)

  The Society may cancel or suspend a local practising certificate if the holder contravenes a condition of a kind mentioned in subsection (1) or (3).

• (5)

  This section does not limit the Society’s power under section 70 to impose conditions on a practising certificate.

76Statutory condition regarding notice of offence

• (1)

  It is a statutory condition of a local practising certificate that the holder of the certificate must give written notice to the Law Society that the holder has been:

  • (a)

    convicted of an offence that would have to be disclosed under the admission rules in relation to an application for admission to the legal profession under this Act; or

  • (b)

    charged with a serious offence.

• (2)

  The notice must be given within 7 days after the event.

• (3)

  The regulations, or legal profession rules if the regulations do not do so, may specify the person to whom or the address to which the notice is to be sent or delivered.

• (4)

  This section does not apply to an offence to which Division 6 applies.

77Conditions imposed by legal profession rules

The legal profession rules may:

• (a)

  impose conditions on local practising certificates or any class of local practising certificates; or

• (b)

  authorise conditions to be imposed on local practising certificates or any class of local practising certificates.

78Compliance with conditions

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

Maximum penalty:          500 penalty units.

Division 9Interstate legal practitioners 79Requirement for interstate practising certificate and professional indemnity insurance

• (1)

  An interstate legal practitioner is guilty of an offence if the practitioner:

  • (a)

    either:

    • (i)

      engages in legal practice in this jurisdiction; or

    • (ii)

      represents or advertises that the practitioner is entitled to engage in legal practice in this jurisdiction; and

  • (b)

    is not covered by professional indemnity insurance that:

    • (i)

      covers legal practice in this jurisdiction; and

    • (ii)

      complies with the requirements prescribed by the regulations, being requirements that are no more onerous than the requirements for approved professional indemnity insurance.

  Maximum penalty:          500 penalty units.

• (2)

  This section does not apply to an interstate legal practitioner who:

  • (a)

    is employed by a corporation, other than an incorporated legal practice; and

  • (b)

    provides only in-house legal service in this jurisdiction.

• (3)

  This section does not apply to an interstate legal practitioner who:

  • (a)

    is a government lawyer as defined in section 91(5); and

  • (b)

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

  • (c)

    has an indemnity or immunity (whether provided by law or governmental policy) that is applicable in respect of that legal practice.

• (4)

  The regulations may require an interstate legal practitioner to disclose information about professional indemnity insurance to clients or prospective clients.

80Extent of entitlement of interstate legal practitioner to practise in this jurisdiction

• (1)

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

• (2)

  Also, an interstate legal practitioner’s right to engage in legal practice in this jurisdiction:

  • (a)

    is subject to:

    • (i)

      any conditions imposed by the Law Society under section 81; and

    • (ii)

      any conditions imposed by or under the legal profession rules as referred to in that section; and

  • (b)

    is, to the greatest practicable extent and with all necessary changes:

    • (i)

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

    • (ii)

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

• (3)

  If there is an inconsistency between conditions mentioned in subsection (2)(a) and conditions mentioned in subsection (2)(b), the conditions that are, in the opinion of the Society, more onerous prevail to the extent of the inconsistency.

• (4)

  An interstate lawyer must not engage in legal practice in this jurisdiction in a manner not authorised by this Act or in contravention of any condition referred to in this section.

81Additional conditions on practice of interstate legal practitioners

• (1)

  The Law Society may, by written notice to an interstate legal practitioner engaged in legal practice in this jurisdiction, impose any condition on the practitioner’s practice that it may impose under this Act on a local practising certificate.

• (2)

  Also, an interstate legal practitioner’s right to engage in legal practice in this jurisdiction is subject to any condition imposed by or under an applicable legal profession rule.

• (3)

  Conditions imposed under or referred to in this section must not be more onerous than conditions applying to local legal practitioners.

• (4)

  A notice under this section must include an information notice for the decision to impose a condition.

• (5)

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

82Special provisions about interstate legal practitioner engaging in unsupervised legal practice in this jurisdiction

• (1)

  An interstate legal practitioner must not engage in unsupervised legal practice in this jurisdiction unless:

  • (a)

    if the interstate legal practitioner completed practical legal training principally under the supervision of an Australian lawyer (whether involving articles of clerkship, graduate clerk or otherwise) to qualify for admission to the legal profession in this or another jurisdiction – the interstate legal practitioner has undertaken a period or periods equivalent to 18 months supervised legal practice after the day the practitioner’s first practising certificate was granted; or

  • (b)

    if the interstate legal practitioner completed other practical legal training to qualify for admission to the legal profession in this or another jurisdiction – the interstate legal practitioner has undertaken a period or periods equivalent to 2 years supervised legal practice after the day the practitioner’s first practising certificate was granted.

  Maximum penalty:          500 penalty units.

• (2)

  For subsection (1):

  • (a)

    the period or periods must be worked out under the regulations; and

  • (b)

    a period of supervised legal practice in the practitioner’s home jurisdiction must be worked out under the corresponding law for that jurisdiction.

• (3)

  Subsection (1) does not apply if the practitioner is exempt from the requirement for supervised legal practice in the practitioner’s home jurisdiction.

• (4)

  Subsection (1) applies only to the extent of a shorter period if the required period of supervised legal practice has been reduced for the practitioner in the practitioner’s home jurisdiction.

83Interstate legal practitioner is officer of Supreme Court

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

84Mutual recognition local registration authority

For a Mutual Recognition Act, the Law Society is the local registration authority for an application for registration under that Act so far as the application relates to an application for the issue of a practising certificate in the Territory.

Division 10Miscellaneous matters 85Jurisdiction protocols

• (1)

  The Law Society may enter into arrangements (jurisdiction protocols) with regulatory authorities of other jurisdictions about deciding:

  • (a)

    the jurisdiction in which an Australian lawyer engages in legal practice principally or can reasonably expect to engage in legal practice principally; or

  • (b)

    the circumstances in which an arrangement under which an Australian legal practitioner practises in a jurisdiction:

    • (i)

      can be regarded as being of a temporary nature; or

    • (ii)

      ceases to be of a temporary nature; or

  • (c)

    the circumstances in which an Australian legal practitioner can reasonably expect to engage in legal practice principally in a jurisdiction during the currency of an Australian practising certificate.

• (2)

  For this Act, and to the extent a jurisdiction protocol is relevant, a matter referred to in subsection (1)(a), (b) or (c) must be decided in accordance with the protocol.

• (3)

  The Society may enter into arrangements that amend, revoke or replace a jurisdiction protocol.

• (4)

  A jurisdiction protocol does not have effect in this jurisdiction unless it is embodied or identified in the regulations.

86Consideration and investigation of applicants or holders

• (1)

  To help it consider whether or not to grant, renew, amend, suspend or cancel a local practising certificate, the Law Society may, by notice to the applicant or holder, require the applicant or holder:

  • (a)

    to give it specified documents or information; or

  • (b)

    to cooperate with any inquiries by the Society that it considers appropriate.

• (2)

  A contravention of a notice under subsection (1) by the date specified in the notice and in the way required by the notice is a ground for making an adverse decision in relation to the action being considered by the Society.

• (3)

  Without limiting subsection (2), a contravention of a requirement for a medical examination may be accepted by the Society as evidence of the unfitness of the person to engage in legal practice.

87Register of local practising certificates

• (1)

  The Law Society must keep a register of the names of Australian lawyers to whom it grants local practising certificates.

• (2)

  The regulations may make provision for or with respect to the following:

  • (a)

    particulars that may be included in the register;

  • (b)

    particulars that must be included in the register;

  • (c)

    notice by local legal practitioners to the Society of changes of particulars;

  • (d)

    notice by the Society to other authorities of particulars contained in the register.

• (3)

  The register must specify the conditions (if any) imposed on a local practising certificate in relation to engaging in legal practice.

• (4)

  A condition imposed on a local practising certificate relating to infirmity, injury or mental or physical illness must not be specified on the register unless:

  • (a)

    the condition restricts the holder’s right to engage in legal practice; or

  • (b)

    the holder consents to the condition being specified on the register.

• (5)

  The register may be kept in the way the Society decides.

• (6)

  The Society may publish, in the circumstances it considers appropriate, the names of persons kept on the register and any other particulars included in the register concerning the persons.

• (7)

  The register must be available for inspection, without charge, at the Society’s office during normal business hours.

88Orders about conditions

• (1)

  The Statutory Supervisor or Law Society may apply to the Supreme Court for an order that:

  • (a)

    a local legal practitioner not contravene a condition imposed under this Part; or

  • (b)

    an interstate legal practitioner not contravene a requirement of section 80(4).

• (2)

  No undertaking as to damages or costs is required.

• (3)

  On hearing the application, the Court may make the order it considers appropriate.

• (4)

  This section does not affect section 700.

89Appeals

• (1)

  An aggrieved person may appeal to the Supreme Court against any of the following decisions of the Law Society:

  • (a)

    a decision under section 54 or 63 to refuse to grant or renew a local practising certificate;

  • (b)

    a decision under section 54 to impose a condition on a local practising certificate;

  • (c)

    a decision under section 57, 63 or 66 to amend, suspend or cancel a local practising certificate;

  • (d)

    a decision under section 64 that the person is not entitled to apply for the grant of a local practising certificate for a specified period;

  • (e)

    a decision under section 81 to impose a condition on an interstate legal practitioner’s right to engage in legal practice in this jurisdiction.

• (2)

  An aggrieved person is the applicant for, or holder of, the practising certificate.

• (3)

  The appeal must be started by filing a notice of appeal within 28 days after receiving the information notice for the decision.

• (4)

  The notice of appeal must state fully the grounds of appeal.

• (5)

  On hearing the appeal, the Court may make the order it considers appropriate.

• (6)

  Except to the extent (if any) that may be ordered by the Court, the filing of an appeal does not stay the effect of the refusal, amendment, suspension or cancellation appealed against.

90Government lawyers – general exemption from certain conditions

• (1)

  A government lawyer’s local practising certificate is not subject to conditions of the kind referred to in section 70(3)(a), (b) and (d) or 75(1), other than a condition relating to continuing legal education.

• (2)

  However, a government lawyer’s local practising certificate is not subject to a condition relating to continuing legal education if the lawyer holds an office prescribed by the regulations.

• (3)

  Contributions and levies are not payable to the Fidelity Fund by or in relation to a government lawyer engaged in legal practice in the course of the lawyer’s duties for the entity in relation to which the person is an employee.

• (4)

  Without affecting subsections (1) and (2), this section does not prevent a government lawyer of another jurisdiction from being granted or holding a local practising certificate.

• (5)

  In this section:

  another jurisdiction means:

  • (a)

    another State or Territory of the Commonwealth; or

  • (b)

    the Commonwealth.

  government agency means an entity, or class of entity, prescribed by the regulations.

  government lawyer means an Australian lawyer, or a person eligible to be admitted as an Australian lawyer, employed by a government agency.

91Government lawyers of other jurisdictions

• (1)

  A government lawyer of another jurisdiction is not subject to:

  • (a)

    any prohibition under this Act about:

    • (i)

      engaging in legal practice in this jurisdiction; or

    • (ii)

      making representations about engaging in legal practice in this jurisdiction; or

  • (b)

    conditions imposed on a local practising certificate; or

  • (c)

    requirements of legal profession rules; or

  • (d)

    professional discipline;

  in relation to the performance of official duties or functions as a government employee of the other jurisdiction to the extent the lawyer is exempt from matters of the same kind under a law of the other jurisdiction.

• (2)

  Contributions and levies are not payable to the Fidelity Fund by or in relation to a government lawyer of another jurisdiction in the lawyer’s capacity as a government employee.

• (3)

  Without affecting subsection (1), that subsection extends to prohibitions under section 79 relating to professional indemnity insurance.

• (4)

  Without affecting subsections (1), (2) and (3), this section does not prevent a government lawyer of another jurisdiction from being granted or holding a local practising certificate.

• (5)

  In this section:

  another jurisdiction means:

  • (a)

    another State or Territory of the Commonwealth; or

  • (b)

    the Commonwealth.

  government agency, of another jurisdiction, means an entity, or class of entity, prescribed by the regulations.

  government lawyer means an Australian lawyer, or a person eligible to be admitted as an Australian lawyer, employed by a government agency of another jurisdiction.

Part 2.4Suitability reportsDivision 1Preliminary matters 92Main purpose of Part

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

93Definitions

In this Part:

health assessor, see section 96(1).

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

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

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

registration means local registration or interstate registration.

relevant authority means:

• (a)

  for an applicant for admission – the Admission Board; or

• (b)

  for an applicant for the grant or renewal of a local practising certificate or local registration, for the holder of a local practising certificate or for a locally-registered foreign lawyer – the Law Society.

subject person means:

• (a)

  an applicant for admission; or

• (b)

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

• (c)

  the holder of a local practising certificate; or

• (d)

  an applicant for registration as a locally-registered foreign lawyer; or

• (e)

  a locally-registered foreign lawyer.

suitability report means a police report or health assessment report prepared under this Part or under provisions of a corresponding law, and includes a copy of a report or a part of a report or copy.

Division 2Police reports 94Relevant authority may ask for police report

• (1)

  A relevant authority may ask the Commissioner of Police for a written report about a subject person’s criminal history.

• (2)

  Subsection (1), applies to the subject person’s criminal history that is:

  • (a)

    in the Commissioner’s possession; or

  • (b)

    ordinarily accessible to the Commissioner through arrangements with the police service of the Commonwealth or a State or another Territory.

• (3)

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

• (4)

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

• (5)

  The Commissioner must give the report to the authority despite that part of the criminal history is a spent conviction as defined in the Criminal Records (Spent Convictions) Act 1992.

Division 3Health assessments 95Health assessment

• (1)

  This section applies if a relevant authority believes a subject person may have a material inability that may make the person unsuitable to engage in legal practice in this jurisdiction.

• (2)

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

• (3)

  If the relevant authority decides to require the health assessment, the authority must give the subject person an information notice for the decision to require the assessment that includes:

  • (a)

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

  • (b)

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

• (4)

  The specified date must be not earlier than 28 days after the information notice is given to the subject person.

• (5)

  The subject person may appeal to the Supreme Court against the decision within 28 days after the day the information notice is given to the subject person.

• (6)

  On hearing the appeal, the Court may make the order it considers appropriate.

96Appointment of health assessor

• (1)

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

• (2)

  At least one health assessor must be a medical practitioner.

• (3)

  If the relevant authority considers the subject person’s criminal history is relevant to the assessment, the authority may disclose the history to the health assessor despite that part of the criminal history is a spent conviction as defined in the Criminal Records (Spent Convictions) Act 1992.

• (4)

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

• (5)

  In this section:

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

97Health assessment report

• (1)

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

• (2)

  The health assessment report must include:

  • (a)

    the health assessor’s findings as to any material inability of the subject person and the extent, if any, to which the inability may make the person unsuitable to engage in legal practice; and

  • (b)

    if the health assessor finds the person has a material inability that may make the person unsuitable to engage in legal practice, the health assessor’s recommendations, if any, as to a condition:

    • (i)

      the Supreme Court could impose on the person’s admission under this Act as a legal practitioner that would make, or would be likely to make, the person suitable to engage in legal practice, despite the inability; or

    • (ii)

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

• (3)

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

98Payment for health assessment and report

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

99Use of health assessment report

• (1)

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

• (2)

  Subsection (1) does not apply in relation to:

  • (a)

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

  • (b)

    proceedings on an appeal by the subject person against a decision of a relevant authority of this or another jurisdiction:

    • (i)

      refusing to grant or renew a practising certificate or registration; or

    • (ii)

      imposing conditions on a practising certificate or registration; or

    • (iii)

      amending or cancelling a practising certificate or registration.

• (3)

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

  • (a)

    the health assessor who prepared the report; and

• • (b)

    the subject person to whom the report relates.

• (4)

  In this section:

  report means a health assessment report prepared under this Division or under provisions of a corresponding law, and includes a copy of a report or a part of a report or copy.

Division 4General matters 100Operation of

• (1)

  This Part does not authorise the Admission Board to seek a suitability report about:

  • (a)

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

  • (b)

    the holder of a local practising certificate.

• (2)

  This Part does not authorise the Law Society to seek a suitability report about an applicant for admission.

Part 2.5Inter-jurisdictional provisions regarding admission and practising certificatesDivision 1Preliminary matters 101Purpose

The purpose of this Part is to provide a nationally consistent scheme for notices of and response to action taken by courts and other authorities in relation to the admission of persons to the legal profession and their right to engage in legal practice in Australia.

102Definition

In this Part:

foreign regulatory action, taken in relation to a person, means:

• (a)

  removal of the person’s name from a foreign roll for disciplinary reasons; or

• (b)

  suspension or cancellation of, or refusal to renew, the person’s right to engage in legal practice in a foreign country.

103Other requirements not affected

This Part does not affect any powers or duties under Chapter 4.

Division 2Notices to be given by local authorities to interstate authorities 104Official notice to other jurisdictions of applications for admission and associated matters

• (1)

  This section applies if an application for admission to the legal profession is made under this Act.

• (2)

  The Admission Board may give the corresponding authority for another jurisdiction written notice of any of the following (as relevant):

  • (a)

    the making of the application;

  • (b)

    the refusal to issue a compliance certificate in relation to the application;

  • (c)

    the withdrawal of the application after an inquiry is proposed or started in relation to the application or a suitability report is sought or obtained;

  • (d)

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

• (3)

  The notice must specify the applicant’s name and address as last known to the Board and may contain other relevant information.

105Official notice to other jurisdictions of removals from local roll

• (1)

  This section applies if a person’s name is removed from the local roll, except if the removal occurs under section 111.

• (2)

  A Registrar must, as soon as practicable, give written notice of the removal to:

  • (a)

    the corresponding authority of every other jurisdiction; and

  • (b)

    the registrar or other proper officer of the High Court of Australia.

• (3)

  The notice must specify:

  • (a)

    the person’s name and address as last known to the Registrar; and

  • (b)

    the date the person’s name was removed from the roll; and

  • (c)

    the reason for removing the person’s name.

• (4)

  The notice may contain other relevant information.

106Law Society to notify other jurisdictions of certain matters

• (1)

  This section applies if:

  • (a)

    the Law Society takes any of the following actions:

    • (i)

      refuses to grant an Australian lawyer a local practising certificate;

    • (ii)

      suspends, cancels or refuses to renew an Australian lawyer’s local practising certificate; or

  • (b)

    the lawyer successfully appeals against the action taken.

• (2)

  The Society must, as soon as practicable, give the corresponding authorities of other jurisdictions written notice of the action taken or the result of the appeal.

• (3)

  The notice must specify:

  • (a)

    the lawyer’s name and address as last known to the Society; and

  • (b)

    particulars of:

    • (i)

      the action taken and the reasons for it; or

    • (ii)

      the result of the appeal.

• (4)

  The notice may contain other relevant information.

• (5)

  The Society may give corresponding authorities written notice of a condition imposed on an Australian lawyer’s local practising certificate.

Division 3Notices to be given by lawyers to local authorities 107Lawyer to give notice of removal in another jurisdiction

• (1)

  A person is guilty of an offence if:

  • (a)

    the person is a local lawyer other than a local legal practitioner; and

  • (b)

    the person’s name is removed from an interstate roll; and

  • (c)

    the person fails to give a Registrar written notice of the removal as soon as practicable after the removal.

  Maximum penalty:          500 penalty units.

• (2)

  A person is guilty of an offence if:

  • (a)

    the person is a local legal practitioner; and

  • (b)

    the person’s name is removed from an interstate roll; and

  • (c)

    the person fails to give a Registrar written notice of the removal as soon as practicable after the removal.

  Maximum penalty:          500 penalty units.

• (3)

  This section does not apply if the name has been removed from an interstate roll under a provision that corresponds to section 111.

• (4)

  Strict liability applies to subsections (1)(a) and (2)(a).

108Lawyer to give notice of interstate orders

• (1)

  A person is guilty of an offence if:

  • (a)

    the person is a local lawyer other than a local legal practitioner; and

  • (b)

    an order is made under a corresponding law recommending that the person’s name be removed from the local roll; and

  • (c)

    the person fails to give a Registrar written notice of the removal under section 110 as soon as practicable after the removal.

  Maximum penalty:          500 penalty units.

• (2)

  A person is guilty of an offence if:

  • (a)

    the person is a local legal practitioner; and

  • (b)

    an order or decision is made under a corresponding law that:

    • (i)

      the person’s local practising certificate be suspended or cancelled; or

    • (ii)

      a local practising certificate not be granted to the person for a period; or

    • (iii)

      conditions be imposed on the person’s local practising certificate; and

  • (c)

    the person fails to give a Registrar written notice of the order or decision under section 110 as soon as practicable after the removal.

  Maximum penalty: 500 penalty units.

• (3)

  Strict liability applies to subsections (1)(a) and (2)(a).

109Lawyer to give notice of foreign regulatory action

• (1)

  A person is guilty of an offence if:

  • (a)

    the person is a local lawyer other than a local legal practitioner; and

  • (b)

    foreign regulatory action has been taken in relation to the person; and

  • (c)

    the person fails to give a Registrar written notice of the action as soon as practicable after it is taken.

  Maximum penalty:          500 penalty units.

• (2)

  A person is guilty of an offence if:

  • (a)

    the person is a local legal practitioner; and

  • (b)

    foreign regulatory action has been taken in relation to the person; and

  • (c)

    the person fails to give the Law Society written notice of the action as soon as practicable after it is taken.

  Maximum penalty:          500 penalty units.

• (3)

  Strict liability applies to subsections (1)(a) and (2)(a).

110Provisions relating to requirement to give notice

A notice to be given under this Division by a local lawyer or local legal practitioner must:

• (a)

  specify his or her name and address; and

• (b)

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

• (c)

  be accompanied by a copy of any official notification provided to him or her in connection with that action.

Division 4Taking of action by local authorities in response to notices received 111Peremptory removal of local lawyer's name from local roll following removal in another jurisdiction

• (1)

  This section applies if a Registrar is satisfied:

  • (a)

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

  • (b)

    no order referred to in section 115(1)(a) is, at the time of the removal, in force in relation to it.

• (2)

  The Registrar must remove the lawyer’s name from the local roll.

• (3)

  The Registrar may, but need not, give the lawyer notice of the date on which the registrar proposes to remove the name from the local roll.

• (4)

  The Registrar must, as soon as practicable, give the former local lawyer notice of the removal of the name from the local roll, unless notice of the date of the proposed removal was previously given.

• (5)

  The name of the former local lawyer must, on his or her application to the Registrar or on the Registrar’s own initiative, be restored to the local roll if the name is restored to the interstate roll.

• (6)

  This section does not prevent the former local lawyer from afterwards applying for admission under Part 2.2.

112Peremptory cancellation of local practising certificate following removal of name from interstate roll

• (1)

  This section applies if:

  • (a)

    a person’s name is removed from an interstate roll but the person remains an Australian lawyer; and

  • (b)

    the person is the holder of a local practising certificate; and

  • (c)

    no order mentioned in section 115(1)(b) is, at the time of the removal, in force in relation to it.

• (2)

  The Law Society must cancel the local practising certificate as soon as practicable after receiving official written notice of the removal.

• (3)

  The Society may, but need not, give the person notice of the date on which the Society proposes to cancel the local practising certificate.

• (4)

  The Society must, as soon as practicable, give the person notice of the cancellation, unless notice of the date of the proposed cancellation was previously given.

• (5)

  This section does not prevent the former local lawyer from afterwards applying for a local practising certificate.

113Show cause procedure for removal of lawyer's name from local roll following foreign regulatory action

• (1)

  This section applies if the Law Society is satisfied:

  • (a)

    foreign regulatory action has been taken in relation to a local lawyer; and

  • (b)

    no order mentioned in section 115(1)(a) is, at the time of the removal, in force in relation to it.

• (2)

  The Society may serve on the lawyer a notice specifying that the Society will apply to the Supreme Court for an order that the lawyer’s name be removed from the local roll unless the lawyer shows cause to the Society why the lawyer’s name should not be removed.

• (3)

  If the lawyer does not satisfy the Society that the lawyer’s name should not be removed from the local roll, the Society may apply to the Court for an order that the lawyer’s name be removed from the local roll.

• (4)

  Before applying for an order that the lawyer’s name be removed, the Society must afford the practitioner a reasonable opportunity to show cause why the lawyer’s name should not be removed.

• (5)

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

• (6)

  The lawyer is entitled to appear before and be heard by the Court at a hearing of an application under this section.

114Show cause procedure for cancellation of local practising certificate following foreign regulatory action

• (1)

  This section applies if the Law Society is satisfied:

  • (a)

    foreign regulatory action has been taken in relation to a local legal practitioner; and

  • (b)

    no order mentioned in section 115(1)(b) is, at the time the action was taken, in force in relation to the action taken.

• (2)

  The Society may serve on the practitioner a notice specifying that the Society proposes to cancel the practitioner’s local practising certificate unless the practitioner shows cause to the Society why the practitioner’s practising certificate should not be cancelled.

• (3)

  The Society must afford the practitioner a reasonable opportunity to show cause why the practitioner’s practising certificate should not be cancelled.

• (4)

  If the practitioner does not satisfy the Society that the practising certificate should not be cancelled, the Society may cancel the certificate.

• (5)

  The Society must, as soon as practicable, give the practitioner an information notice for its decision to cancel the practising certificate.

• (6)

  The practitioner may appeal to the Supreme Court against the decision.

• (7)

  The appeal must be started by filing notice of appeal within 28 days after receiving the information notice.

• (8)

  The notice of appeal must state fully the grounds of appeal.

• (9)

  On hearing the appeal, the Court may make the order it considers appropriate.

115Order for non-removal of name or non-cancellation of local practising certificate

• (1)

  If an Australian lawyer reasonably expects that the lawyer’s name will be removed from an interstate roll or that foreign regulatory action may be taken against the lawyer, the lawyer may apply to the Supreme Court for:

  • (a)

    an order that the lawyer’s name not be removed from the local roll under section 111 or 113; or

  • (b)

    an order that the lawyer’s local practising certificate not be cancelled under section 112 or 114;

  or both.

• (2)

  The Court may make the order or orders applied for if satisfied:

  • (a)

    the lawyer’s name is likely to be removed from the interstate roll or the foreign regulatory action is likely to be taken; and

  • (b)

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

  or may refuse to make an order.

• (3)

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

• (4)

  The Court may revoke an order made under this section and sections 111 to 114 (as relevant) then apply as if the lawyer’s name were removed from the interstate roll when the revocation takes effect.

• (5)

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

116Local authority may give information to other local authorities

An authority of this jurisdiction that receives information from an authority of another jurisdiction under provisions of a corresponding law that correspond to this Part may give the information to other authorities of this jurisdiction that have powers or duties under this Act.

Part 2.6Incorporated legal practices and multi-disciplinary partnershipsDivision 1Preliminary matters 117Purposes of Part

The purposes of this Part are:

• (a)

  to regulate the provision of legal services by corporations in this jurisdiction; and

• (b)

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

118Definitions

In this Part:

corporation means:

• (a)

  a company within the meaning of the Corporations Act; or

• (b)

  any other body corporate, or body corporate of a kind, prescribed by the regulations.

director, in relation to:

• (a)

  a company within the meaning of the Corporations Act – means a director as defined in section 9 of that Act; or

• (b)

  any other body corporate, or body corporate of a kind, prescribed by the regulations – means a person specified or described in the regulations.

legal practitioner director means a director of an incorporated legal practice who is an Australian legal practitioner holding an unrestricted practising certificate.

legal practitioner partner means a partner of a multi-disciplinary partnership who is an Australian legal practitioner holding an unrestricted practising certificate.

officer means:

• (a)

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

• (b)

  in relation to any other body corporate, or body corporate of a kind, prescribed by the regulations – a person specified or described in the regulations.

professional obligations, of an Australian legal practitioner, include:

• (a)

  duties to the Supreme Court; and

• (b)

  obligations in connection with conflicts of interest; and

• (c)

  duties to clients, including disclosure; and

• (d)

  ethical rules required to be observed by the practitioner.

Regulator, for another jurisdiction, means the entity defined as the Regulator for that jurisdiction by the corresponding law of that jurisdiction or, if there is no such definition, the corresponding authority.

related body corporate means:

• (a)

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

• (b)

  in relation to any other body corporate, or body corporate of a kind, prescribed by the regulations – a person specified or described in the regulations.

Division 2Incorporated legal practices 119Nature of incorporated legal practice

• (1)

  An incorporated legal practice is a corporation that engages in legal practice in this jurisdiction, whether or not it also provides services that are not legal services.

• (2)

  However, a corporation is not an incorporated legal practice if:

  • (a)

    the corporation does not receive any fee, gain or reward for the legal services it provides; or

  • (b)

    the only legal services that the corporation provides are any or all of the following services:

    • (i)

      in-house legal services, namely, legal services provided to the corporation concerning a proceeding or transaction to which the corporation (or a related body corporate) is a party;

    • (ii)

      services that are not legally required to be provided by an Australian legal practitioner and that are provided by an officer or employee who is not an Australian legal practitioner; or

  • (c)

    the corporation is a complying community legal centre; or

  • (d)

    the corporation is a practising company as defined in section 720; or

  • (e)

    this Part or the regulations exempt the corporation from this Part.

• (3)

  The regulations may make provision for or with respect to the application (with or without specified modifications) of provisions of this Act to corporations that are not incorporated legal practices because of the operation of subsection (2).

• (4)

  Nothing in this Part affects or applies to the provision by an incorporated legal practice of legal services in one or more other jurisdictions.

120Non-legal services and businesses of incorporated legal practices

• (1)

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

• (2)

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

• (3)

  The regulations may prohibit an incorporated legal practice (or a related body corporate) from providing a service or conducting a business of a kind specified in the regulations.

121Corporations eligible to be incorporated legal practice

• (1)

  Any corporation is, subject to this Part, eligible to be an incorporated legal practice.

• (2)

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

• (3)

  An incorporated legal practice is not itself required to hold an Australian practising certificate.

122Notice of intention to start providing legal services

• (1)

  Before a corporation starts to engage in legal practice in this jurisdiction, the corporation must give the Law Society written notice, in the approved form, of its intention to do so.

• (2)

  A corporation must not engage in legal practice in this jurisdiction if it is in default of this section under subsection (3).

  Maximum penalty:          500 penalty units.

• (3)

  A corporation that fails to comply with subsection (1) is in default of this section until it gives the Society written notice, in the approved form, of:

  • (a)

    the failure; and

  • (b)

    the fact that it has started to engage in legal practice.

• (4)

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

• (5)

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

• (6)

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

• (7)

  An offence against subsection (2) is an offence of strict liability.

• (8)

  This section does not apply to a corporation referred to in section 119(2)(a) to (e).

123Prohibition on representations that corporation is incorporated legal practice

• (1)

  A corporation must not represent or advertise it is an incorporated legal practice unless it has given notice under section 122.

  Maximum penalty:          2 500 penalty units.

• (2)

  An offence against subsection (1) is an offence of strict liability.

• (3)

  A person is guilty of an offence if:

  • (a)

    the person is a director, officer, employee or agent of a corporation; and

  • (b)

    the person represents or advertises that the corporation is an incorporated legal practice; and

  • (c)

    the corporation has not given notice under section 122.

  Maximum penalty:          500 penalty units.

• (4)

  It is a defence to a prosecution for an offence against subsection (3) if the person has a reasonable excuse.

• (5)

  A reference in this section to:

  • (a)

    a corporation representing or advertising that the corporation is an incorporated legal practice; or

  • (b)

    a person representing or advertising that a corporation is an incorporated legal practice;

  includes a reference to the corporation or person doing anything that specifies or implies that the corporation is entitled to engage in legal practice.

124Notice of ceasing provision of legal services

• (1)

  A corporation is guilty of an offence if:

  • (a)

    it ceases to engage in legal practice in this jurisdiction as an incorporated legal practice; and

  • (b)

    it fails to give the Law Society written notice in the approved form of that fact within the period prescribed by the regulations after the day it ceases to engage in legal practice in this jurisdiction as an incorporated legal practice.

  Maximum penalty:          50 penalty units.

• (2)

  An offence against subsection (1) is an offence of strict liability.

• (3)

  The regulations may make provision for or with respect to determining whether and when a corporation ceases to engage in legal practice in this jurisdiction.

125Incorporated legal practice must have legal practitioner directo

• (1)

  An incorporated legal practice is required to have at least one legal practitioner director.

• (2)

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

• (3)

  Each legal practitioner director of an incorporated legal practice must ensure appropriate management systems are implemented and maintained to enable the provision of legal services by the incorporated legal practice:

  • (a)

    in accordance with the professional obligations of Australian legal practitioners and other obligations imposed by or under this Act; and

  • (b)

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

• (4)

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

  • (a)

    the breaches do not occur; and

  • (b)

    appropriate remedial action is taken in respect of breaches that do occur.

• (5)

  Nothing in this Part derogates from the obligations or liabilities of a director of an incorporated legal practice under any other law.

• (6)

  The reference in subsection (1) to a legal practitioner director does not include a reference to a person who is not validly appointed as a director, but this subsection does not affect the meaning of the expression legal practitioner director in other provisions of this Act.

126Obligations of legal practitioner director relating to misconduct

• (1)

  Each of the following is capable of constituting unsatisfactory professional conduct or professional misconduct by a legal practitioner director:

  • (a)

    unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the incorporated legal practice;

  • (b)

    conduct of any other director (not being an Australian legal practitioner) of the incorporated legal practice that adversely affects the provision of legal services by the practice;

  • (c)

    the unsuitability of any other director (not being an Australian legal practitioner) of the incorporated legal practice to be a director of a corporation that provides legal services.

• (2)

  A legal practitioner director is not guilty of unsatisfactory professional conduct or professional misconduct under subsection (1) if the director establishes he or she took all reasonable steps to ensure:

  • (a)

    Australian legal practitioners employed by the incorporated legal practice did not engage in conduct or misconduct referred to in subsection (1)(a); or

  • (b)

    directors (not being Australian legal practitioners) of the incorporated legal practice did not engage in conduct referred to in subsection (1)(b); or

  • (c)

    unsuitable directors (not being Australian legal practitioners) of the incorporated legal practice were not appointed or holding office as referred to in subsection (1)(c);

  as the case requires.

• (3)

  A legal practitioner director of an incorporated legal practice must ensure all reasonable action available to the legal practitioner director is taken to deal with any unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the practice.

127Incorporated legal practice without legal practitioner director

• (1)

  An incorporated legal practice contravenes this subsection if it does not have any legal practitioner directors for a period exceeding 7 days.

  Maximum penalty:          20 penalty units.

• (2)

  If an incorporated legal practice ceases to have any legal practitioner directors, the incorporated legal practice must notify the Law Society as soon as possible.

  Maximum penalty:          20 penalty units.

• (3)

  An incorporated legal practice must not provide legal services in this jurisdiction during any period it is in default of director requirements under this section.

  Maximum penalty:          20 penalty units.

• (4)

  An incorporated legal practice that contravenes subsection (1) is taken to be in default of director requirements under this section for the period from the end of the 7-day period until:

  • (a)

    it has at least one legal practitioner director; or

  • (b)

    a person is appointed under this section or a corresponding law in relation to the practice.

• (5)

  The Society may, if it thinks it appropriate, appoint an Australian legal practitioner who is an employee of the incorporated legal practice or another person nominated by the Society, in the absence of a legal practitioner director, to exercise or perform the functions or duties conferred or imposed on a legal practitioner director under this Part.

• (6)

  An Australian legal practitioner is not eligible to be appointed under this section unless the practitioner holds an unrestricted practising certificate.

• (7)

  The appointment under this section of a person to exercise or perform functions or duties of a legal practitioner director does not, for any other purpose, confer or impose on the person any of the other functions or duties of a director of the incorporated legal practice.

• (8)

  An incorporated legal practice does not contravene subsection (1) during any period during which a person holds an appointment under this section in relation to the practice.

• (9)

  A reference in this section to a legal practitioner director does not include a reference to a person who is not validly appointed as a director, but this subsection does not affect the meaning of the expression legal practitioner director in other provisions of this Act.

128Obligations and privileges of practitioners who are officers or employees

• (1)

  An Australian legal practitioner who provides legal services on behalf of an incorporated legal practice in the capacity of an officer or employee of the practice:

  • (a)

    is not excused from compliance with professional obligations as an Australian legal practitioner, or any obligations as an Australian legal practitioner under any law; and

  • (b)

    does not lose the professional privileges of an Australian legal practitioner.

• (2)

  For the purposes only of subsection (1), the professional obligations and professional privileges of a practitioner apply as if:

  • (a)

    where there are 2 or more legal practitioner directors of an incorporated legal practice – the practice were a partnership of the legal practitioner directors and the employees of the practice were employees of the legal practitioner directors; or

  • (b)

    where there is only one legal practitioner director of an incorporated legal practice – the practice were a sole practitioner and the employees of the practice were employees of the legal practitioner director.

• (3)

  The law relating to client legal privilege (or other legal professional privilege) is not excluded or otherwise affected because an Australian legal practitioner is acting in the capacity of an officer or employee of an incorporated legal practice.

• (4)

  The directors of an incorporated legal practice do not breach their duties as directors merely because legal services are provided pro bono by an Australian legal practitioner employed by the practice.

129Conflicts of interest

• (1)

  For the application of any law (including the common law) or legal profession rules relating to conflicts of interest to the conduct of an Australian legal practitioner who is:

  • (a)

    a legal practitioner director of an incorporated legal practice; or

  • (b)

    an officer or employee of an incorporated legal practice;

  the interests of the incorporated legal practice or any related body corporate are also taken to be those of the practitioner (in addition to any interests the practitioner has apart from this subsection).

• (2)

  Legal profession rules may be made for or with respect to additional duties and obligations in connection with conflicts of interest arising out of the conduct of an incorporated legal practice.

  Note for section 129

  Under section 128, an Australian legal practitioner who is an officer or employee of an incorporated legal practice must comply with the same professional obligations as other practitioners.

130Disclosure obligations

• (1)

  A person (the legal practitioner) is guilty of an offence if:

  • (a)

    someone else (the client) engages an incorporated legal practice to provide services (the required services) that the client might reasonably assume to be legal services; and

  • (b)

    the practice provides services other than legal services in this jurisdiction; and

  • (c)

    the legal practitioner is:

    • (i)

      a legal practitioner director of the practice; or

    • (ii)

      an employee of the practice who is an Australian legal practitioner and provides the required services on behalf of the practice; and

  • (d)

    the legal practitioner fails to ensure a disclosure, complying with the requirements of this section and the regulations made for this section, is made to the client about the required services.

  Maximum penalty:          100 penalty units.

• (2)

  The disclosure must be made by giving the person written notice:

  • (a)

    specifying the services to be provided; and

  • (b)

    specifying whether or not all the legal services to be provided will be provided by an Australian legal practitioner; and

  • (c)

    if some or all of the legal services to be provided will not be provided by an Australian legal practitioner – identifying the services and indicating the status or qualifications of the person or persons who will provide the services; and

  • (d)

    specifying that this Act applies to the provision of legal services but not to the provision of the non-legal services.

  Example of status of person for subsection (2)(c)

  A conveyancing agent as defined in the Agents Licensing Act 1979.

• (3)

  The regulations may provide for any of the following:

  • (a)

    how a disclosure must be made;

  • (b)

    additional matters required to be disclosed in relation to the provision of legal services or non-legal services by an incorporated legal practice.

• (4)

  Without limiting subsection (3), the additional matters may include the kind of services provided by the incorporated legal practice and whether the services are or are not covered by the insurance or other provisions of this Act.

• (5)

  A disclosure under this section to a person about the provision of legal services may relate to the provision of legal services on one occasion or on more than one occasion or on an on-going basis.

131Effect of non-disclosure of provision of certain services

• (1)

  This section applies if:

  • (a)

    section 130 applies in relation to a service that is provided to a person who has engaged an incorporated legal practice to provide the service and that the person might reasonably assume to be a legal service; and

  • (b)

    a disclosure has not been made under that section in relation to the service.

• (2)

  The standard of care owed by the incorporated legal practice in respect of the service is the standard that would be applicable if the service had been provided by an Australian legal practitioner.

132Application of legal profession rules

Legal profession rules, so far as they apply to Australian legal practitioners, also apply to Australian legal practitioners who are officers or employees of an incorporated legal practice, unless the rules otherwise provide.

133Requirements relating to advertising

• (1)

  Any restriction imposed by or under this Act or any other Act, the regulations or legal profession rules in connection with advertising by Australian legal practitioners applies to advertising by an incorporated legal practice with respect to the provision of legal services.

• (2)

  If a restriction referred to in subsection (1) is limited to a particular branch of the legal profession or for persons who practise in a particular style of legal practice, the restriction applies only to the extent that the incorporated legal practice carries on the business in that branch of the legal profession or in that style of legal practice.

• (3)

  Any advertisement of the kind referred to in this section is, for disciplinary proceedings taken against an Australian legal practitioner, taken to have been authorised by each legal practitioner director of the incorporated legal practice.

• (4)

  This section does not apply if the provision by which the restriction is imposed expressly excludes its application to incorporated legal practices.

134Extension of vicarious liability relating to failure to account, pay or deliver and dishonesty to incorporated legal practices

• (1)

  This section applies to any of the following proceedings (being proceedings based on the vicarious liability of an incorporated legal practice):

  • (a)

    civil proceedings relating to a failure to account for, pay or deliver money or property received by, or entrusted to, the practice (or to any officer or employee of the practice) in the course of the provision of legal services by the practice, being money or property under the direct or indirect control of the practice;

  • (b)

    civil proceedings for any other debt owed, or damages payable, to a client as a result of a dishonest act or omission by an Australian legal practitioner who is an employee of the practice in connection with the provision of legal services to the client.

• (2)

  If the incorporated legal practice would not (but for this section) be vicariously liable for any acts or omissions of its officers and employees in those proceedings, but would be liable for those acts or omissions if the practice and those officers and employees were carrying on business in partnership, the practice is taken to be vicariously liable for those acts or omissions.

135Sharing of receipts, revenue or other income

• (1)

  Nothing in this Act prevents an Australian legal practitioner from sharing with an incorporated legal practice receipts, revenue or other income arising from the provision of legal services by the practitioner.

• (2)

  This section does not extend to the sharing of receipts, revenue or other income in contravention of section 136 and has effect subject to section 74.

136Disqualified persons

• (1)

  An incorporated legal practice is guilty of an offence if a disqualified person:

  • (a)

    is an officer or employee of the incorporated legal practice (whether or not the person provides legal services) or is an officer or employee of a related body corporate; or

  • (b)

    is a partner of the incorporated legal practice in a business that includes the provision of legal services; or

  • (c)

    shares the receipts, revenue or other income arising from the provision of legal services by the incorporated legal practice; or

  • (d)

    is engaged or paid in connection with the provision of legal services by the incorporated legal practice.

  Maximum penalty:          500 penalty units.

• (2)

  The failure of a legal practitioner director of an incorporated legal practice to ensure the practice complies with subsection (1) is capable of constituting unsatisfactory professional conduct or professional misconduct.

137Audit of incorporated legal practice

• (1)

  The Law Society may conduct an audit of:

  • (a)

    the compliance of an incorporated legal practice (and of its officers and employees) with the requirements of:

    • (i)

      this Part; or

    • (ii)

      the regulations or legal profession rules, so far as they relate specifically to incorporated legal practices; and

  • (b)

    the management of the provision of legal services by the incorporated legal practice (including the supervision of officers and employees providing the services).

  Note for subsection (1)

  Section 125(3) requires legal practitioner directors to ensure appropriate management systems are implemented and maintained.

• (2)

  The Society may, in writing, appoint a suitably qualified person to conduct an audit under this section.

• (3)

  The appointment may be made generally, or in relation to a particular incorporated legal practice, or in relation to a particular audit.

• (4)

  An audit may be conducted whether or not a complaint has been made against an Australian lawyer with respect to the provision of legal services by the incorporated legal practice.

• (5)

  A report of an audit:

  • (a)

    must be provided to the incorporated legal practice concerned; and

  • (b)

    may be provided to the Statutory Supervisor by the Society; and

  • (c)

    may be provided by the Society to the Regulator of another jurisdiction; and

  • (d)

    may be taken into account in connection with any disciplinary proceedings taken against legal practitioner directors or other persons or in connection with the grant, amendment, suspension or cancellation of Australian practising certificates.

  138Application of Chapter 6

  Chapter 6 applies to an audit under this Division.

139Banning of incorporated legal practices

• (1)

  The Supreme Court may, on the application of the Law Society, make an order disqualifying a corporation from providing legal services in this jurisdiction for the period the Court considers appropriate if satisfied:

  • (a)

    a ground for disqualifying the corporation under this section has been established; and

  • (b)

    the disqualification is justified.

• (2)

  An order under this section may, if the Court thinks it appropriate, be made:

  • (a)

    subject to conditions as to the conduct of the incorporated legal practice; or

  • (b)

    subject to conditions as to when or in what circumstances the order is to take effect; or

  • (c)

    together with orders to safeguard the interests of clients or employees of the incorporated legal practice.

• (3)

  Action may be taken against an incorporated legal practice on any of the following grounds:

  • (a)

    a legal practitioner director or an Australian legal practitioner who is an officer or employee of the corporation is found guilty of professional misconduct under a law of this jurisdiction or another jurisdiction;

  • (b)

    the Society is satisfied, after conducting an audit of the incorporated legal practice, that the incorporated legal practice has failed to implement satisfactory management and supervision of its provision of legal services;

  • (c)

    the incorporated legal practice (or a related body corporate) has contravened section 120 or the regulations made under that section;

  • (d)

    the incorporated legal practice has contravened section 136;

  • (e)

    a person who is an officer of the incorporated legal practice and who is the subject of an order under:

    • (i)

      section 140 or under provisions of a corresponding law that correspond to that section; or

    • (ii)

      section 165 or under provisions of a corresponding law that correspond to that section;

  is acting in the management of the incorporated legal practice.

• (4)

  If a corporation is disqualified under this section, the Society must, as soon as practicable, notify the Regulator of every other jurisdiction.

• (5)

  If a corporation is disqualified from providing legal services in another jurisdiction under a corresponding law, the Society may decide that the corporation is taken to be disqualified from providing legal services in this jurisdiction for the same period, but nothing in this subsection prevents the Society from instead applying for an order under this section.

• (6)

  A corporation is guilty of an offence if it provides legal services in contravention of an order under this section.

  Maximum penalty:          500 penalty units.

• (7)

  A corporation that is disqualified under this section ceases to be an incorporated legal practice.

• (8)

  Conduct of an Australian legal practitioner who provides legal services on behalf of a corporation in the capacity of an officer or employee of the corporation is capable of constituting unsatisfactory professional conduct or professional misconduct where the practitioner ought reasonably to have known that the corporation is disqualified under this section.

• (9)

  The regulations may make provision for or with respect to the publication and notification of orders made under this section, including notification of appropriate authorities of other jurisdictions.

140Disqualification from managing incorporated legal practice

• (1)

  The Supreme Court may, on the application of the Law Society, make an order disqualifying a person from managing a corporation that is an incorporated legal practice for the period the Court considers appropriate if satisfied:

  • (a)

    the person is a person who could be disqualified under section 206C, 206D, 206E or 206F of the Corporations Act from managing corporations; and

  • (b)

    the disqualification is justified.

• (2)

  The Court may, on the application of a person subject to a disqualification order under this section, revoke the order.

• (3)

  A disqualification order made under this section has effect for the purposes only of this Act and does not affect the application or operation of the Corporations Act.

• (4)

  The regulations may make provision for or with respect to the publication and notification of orders made under this section.

• (5)

  A person who is disqualified from managing a corporation under provisions of a corresponding law that correspond to this section is taken to be disqualified from managing a corporation under this section.

141Disclosure of information to ASIC

• (1)

  This section applies if the Law Society, in connection with exercising powers or performing functions under this Act, acquired information concerning a corporation that is or was an incorporated legal practice.

• (2)

  The Society may disclose to the Australian Securities and Investments Commission information concerning the corporation that is relevant to the Commission’s functions.

• (3)

  Information may be provided under subsection (2) despite any law relating to secrecy or confidentiality, including any provisions of this Act.

142External administration proceedings under Corporations Act

• (1)

  This section applies to proceedings in any court under Chapter 5 of the Corporations Act:

  • (a)

    relating to a corporation that is an externally-administered body corporate under that Act; or

  • (b)

    relating to a corporation becoming an externally-administered body corporate under that Act;

  being a corporation that is or was an incorporated legal practice.

• (2)

  The Law Society is entitled to intervene in the proceedings, unless the court decides the proceedings do not concern or affect the provision of legal services by the incorporated legal practice.

• (3)

  The court may, when exercising its jurisdiction in the proceedings, have regard to the interests of the clients of the incorporated legal practice who have been or are to be provided with legal services by the practice.

• (4)

  Subsection (3) does not authorise the court to make any decision that is contrary to a specific provision of the Corporations Act.

• (5)

  The provisions of subsections (2) and (3) are declared to be Corporations legislation displacement provisions for section 5G of the Corporations Act in relation to the provisions of Chapter 5 of that Act.

  Note for subsection (5)

  Section 5G of the Corporations Act provides that if a Territory law declares a provision of a Territory law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the Territory provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.

143External administration proceedings under other legislation

• (1)

  This section applies to proceedings for the external administration (however expressed) of an incorporated legal practice, but does not apply to proceedings to which section 142 applies.

• (2)

  The Law Society is entitled to intervene in the proceedings, unless the court decides the proceedings do not concern or affect the provision of legal services by the incorporated legal practice.

• (3)

  The court may, when exercising its jurisdiction in the proceedings, have regard to the interests of the clients of the incorporated legal practice who have been or are to be provided with legal services by the practice.

• (4)

  Subsection (3) does not authorise the court to make any decision that is contrary to a specific provision of any legislation applicable to the incorporated legal practice.

144Incorporated legal practice subject to receivership under this Act and external administration under Corporations Act

• (1)

  This section applies if an incorporated legal practice is the subject of both:

  • (a)

    the appointment of a Chapter 5 receiver; and

  • (b)

    the appointment of a Corporations Act administrator.

• (2)

  The Chapter 5 receiver is under a duty to notify the Corporations Act administrator of the appointment of the Chapter 5 receiver, whether the appointment precedes, follows or is contemporaneous with the appointment of the Corporations Act administrator.

• (3)

  The Chapter 5 receiver or the Corporations Act administrator (or both of them jointly) may apply to the Supreme Court for the resolution of issues arising from or in connection with the dual appointments and their respective powers, except where proceedings referred to in section 142 have been commenced.

• (4)

  The Court may make the order it considers appropriate, and no liability attaches to the Chapter 5 receiver or Corporations Act administrator for any act or omission done by the receiver or administrator in good faith for carrying out or acting under the order.

• (5)

  The Law Society is entitled to intervene in the proceedings, unless the Court decides the proceedings do not concern or affect the provision of legal services by the incorporated legal practice.

• (6)

  The provisions of subsections (3) and (4) are declared to be Corporations legislation displacement provisions for section 5G of the Corporations Act in relation to the provisions of Chapter 5 of that Act.

• (7)

  In this section:

  Chapter 5 receiver means a receiver appointed under Chapter 5.

  Corporations Act administrator means:

  • (a)

    a receiver, receiver and manager, liquidator (including a provisional liquidator), controller, administrator or deed administrator appointed under the Corporations Act; or

  • (b)

    a person who:

    • (i)

      is appointed to exercise powers under that Act; and

    • (ii)

      is prescribed, or of a class prescribed, by the regulations.

    145Incorporated legal practice subject to receivership under this Act and external administration under other legislation
• (1)

  This section applies if an incorporated legal practice is the subject of both:

  • (a)

    the appointment of a Chapter 5 receiver; and

  • (b)

    the appointment of an external administrator.

• (2)

  The Chapter 5 receiver is under a duty to notify the external administrator of the appointment of the Chapter 5 receiver, whether the appointment precedes, follows or is contemporaneous with the appointment of the external administrator.

• (3)

  The Chapter 5 receiver or the external administrator (or both of them jointly) may apply to the Supreme Court for the resolution of issues arising from or in connection with the dual appointments and their respective powers.

• (4)

  The Court may make the order it considers appropriate, and no liability attaches to the Chapter 5 receiver or external administrator for any act or omission done by the receiver or administrator in good faith for carrying out or acting under the order.

• (5)

  The Law Society is entitled to intervene in the proceedings, unless the Court decides the proceedings do not concern or affect the provision of legal services by the incorporated legal practice.

• (6)

  In this section:

  Chapter 5 receiver means a receiver appointed under Chapter 5.

  external administrator means a person who:

  • (a)

    is appointed to exercise powers under other legislation (whether or not of this jurisdiction); and

  • (b)

    is prescribed, or of a class prescribed, by the regulations.

  146Cooperation between courts

  Courts of this jurisdiction may make arrangements for communicating and cooperating with other courts or tribunals in connection with the exercise of powers under this Part.

147Relationship of Act to constitution of incorporated legal practice

The provisions of this Act that apply to an incorporated legal practice prevail, to the extent of any inconsistency, over the constitution or other constituent documents of the practice.

148Relationship of Act to legislation establishing incorporated legal practice

• (1)

  This section applies to a corporation that is established by or under a law (whether or not of this jurisdiction) and is an incorporated legal practice, but is not a company within the meaning of the Corporations Act.

• (2)

  The provisions of this Act or the regulations that apply to an incorporated legal practice prevail, to the extent of any inconsistency, over provisions of the legislation by or under which the corporation is established or regulated that are specified or described in the regulations.

149Relationship of Act to Corporations legislation

• (1)

  The regulations may declare any provision of this Act that relates to an incorporated legal practice to be a Corporations legislation displacement provision for section 5G of the Corporations Act.

• (2)

  The regulations may declare any matter relating to an incorporated legal practice that is prohibited, required, authorised or permitted by or under this Act to be an excluded matter for section 5F of the Corporations Act in relation to:

  • (a)

    the whole of the Corporations legislation; or

  • (b)

    a specified provision of the Corporations legislation; or

  • (c)

    the Corporations legislation other than a specified provision; or

  • (d)

    the Corporations legislation otherwise than to a specified extent.

• (3)

  In this section:

  matter includes act, omission, body, person or thing.

150Undue influence

A person is guilty of an offence if:

• (a)

  the person causes or induces another person to contravene this Act or his or her professional obligations as an Australian legal practitioner; and

• (b)

  the other person is:

  • (i)

    a legal practitioner director of an incorporated legal practice; or

  • (ii)

    another Australian legal practitioner who provides legal services on behalf of an incorporated legal practice.

Maximum penalty:          400 penalty units or imprisonment for 2 years.

Division 3Multi-disciplinary partnerships 151Nature of multi-disciplinary partnership

• (1)

  A multi-disciplinary partnership is a partnership between one or more Australian legal practitioners and one or more other persons who are not Australian legal practitioners, where the business of the partnership includes the provision of legal services in this jurisdiction as well as other services.

• (2)

  However, a partnership consisting only of one or more Australian legal practitioners and one or more Australian-registered foreign lawyers is not a multi-disciplinary partnership.

• (3)

  Nothing in this Part affects or applies to the provision by a multi-disciplinary partnership of legal services in one or more other jurisdictions.

152Conduct of multi-disciplinary partnerships

• (1)

  An Australian legal practitioner may be in partnership with a person who is not an Australian legal practitioner, where the business of the partnership includes the provision of legal services.

• (2)

  Subsection (1) does not prevent an Australian legal practitioner from being in partnership with a person who is not an Australian legal practitioner, where the business of the partnership does not include the provision of legal services.

• (3)

  The regulations may prohibit an Australian legal practitioner from being in partnership with a person providing a service or conducting a business of a kind specified in the regulations, where the business of the partnership includes the provision of legal services.

153Notice of intention to start practice in multi-disciplinary partnership

• (1)

  A person is guilty of an offence if:

  • (a)

    the person is a legal practitioner partner of a multi-disciplinary partnership; and

  • (b)

    the person starts to provide legal services in this jurisdiction as a member of the partnership; and

  • (c)

    the person has not given the Law Society written notice, in the approved form, of the person’s intention to start providing legal services.

  Maximum penalty:          20 penalty units.

• (2)

  An offence against subsection (1) is an offence of strict liability.

154General obligations of legal practitioner partners

• (1)

  Each legal practitioner partner of a multi-disciplinary partnership is, for the purposes only of this Act, responsible for the management of the legal services provided in this jurisdiction by the partnership.

• (2)

  Each legal practitioner partner must ensure appropriate management systems are implemented and maintained to enable the provision of legal services by the multi-disciplinary partnership:

  • (a)

    in accordance with the professional obligations of Australian legal practitioners and the other obligations imposed by this Act; and

  • (b)

    so that the professional obligations of legal practitioner partners and employees who are Australian legal practitioners are not affected by other partners and employees of the partnership.

  155Obligations of legal practitioner partner relating to misconduct
• (1)

  Each of the following is capable of constituting unsatisfactory professional conduct or professional misconduct by a legal practitioner partner:

  • (a)

    unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the multi-disciplinary partnership;

  • (b)

    conduct of any other partner (not being an Australian legal practitioner) of the multi-disciplinary partnership that adversely affects the provision of legal services by the partnership;

  • (c)

    the unsuitability of any other partner (not being an Australian legal practitioner) of the multi-disciplinary partnership to be a member of a partnership that provides legal services.

• (2)

  A legal practitioner partner of a multi-disciplinary partnership must ensure all reasonable action available to the legal practitioner partner is taken to deal with any unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the partnership.

156Actions of partner who is not Australian legal practitioner

A partner of a multi-disciplinary partnership who is not an Australian legal practitioner does not contravene a provision of this Act merely because of any of the following:

• (a)

  the partner is a member of a partnership where the business of the partnership includes the provision of legal services;

• (b)

  the partner receives any fee, gain or reward for business of the partnership that is the business of an Australian legal practitioner;

• (c)

  the partner holds out, advertises or represents himself or herself as a member of a partnership where the business of the partnership includes the provision of legal services;

• (d)

  the partner shares with any other partner the receipts of business of the partnership that is the business of an Australian legal practitioner;

unless the provision expressly applies to a partner of a multi-disciplinary partnership who is not an Australian legal practitioner.

157Obligations and privileges of practitioners who are partners or employees

• (1)

  An Australian legal practitioner who provides legal services in the capacity of a partner or an employee of a multi-disciplinary partnership:

  • (a)

    is not excused from compliance with professional obligations as an Australian legal practitioner, or any other obligations as an Australian legal practitioner under any law; and

  • (b)

    does not lose the professional privileges of an Australian legal practitioner.

• (2)

  The law relating to client legal privilege (or other legal professional privilege) is not excluded or otherwise affected because an Australian legal practitioner is acting in the capacity of a partner or an employee of a multi-disciplinary partnership.

158Conflicts of interest

• (1)

  For the application of any law (including the common law) or legal profession rules relating to conflicts of interest to the conduct of an Australian legal practitioner who is:

  • (a)

    a legal practitioner partner of a multi-disciplinary partnership; or

  • (b)

    an employee of a multi-disciplinary partnership;

  the interests of the partnership or any partner of the multi-disciplinary partnership are also taken to be those of the practitioner concerned (in addition to any interests that the practitioner has apart from this subsection).

• (2)

  Legal profession rules may be made for or with respect to additional duties and obligations in connection with conflicts of interest arising out of the conduct of a multi-disciplinary partnership.

  Note for section 158

  Under section 157, an Australian legal practitioner who is a partner of an multi-disciplinary partnership must comply with the same professional obligations as other practitioners.

159Disclosure obligations

• (1)

  A person (the legal practitioner) is guilty of an offence if:

  • (a)

    someone else (the client) engages a multi-disciplinary partnership to provide services (the required services) that the client might reasonably assume to be legal services; and

  • (b)

    the legal practitioner is:

    • (i)

      a legal practitioner partner of the partnership; or

    • (ii)

      an employee of the partnership who is an Australian legal practitioner and provides the required services on behalf of the partnership; and

  • (c)

    the legal practitioner fails to ensure a disclosure, complying with the requirements of this section and regulations made for this section, is made to the client in relation to the provision of the required services.

  Maximum penalty:          100 penalty units.

• (2)

  The disclosure must be made by giving the person written notice:

  • (a)

    specifying the services to be provided; and

  • (b)

    specifying whether or not all the legal services to be provided will be provided by an Australian legal practitioner; and

  • (c)

    if some or all of the legal services to be provided will not be provided by an Australian legal practitioner – identifying those services and indicating the status or qualifications of the person or persons who will provide the services; and

  • (d)

    specifying that this Act applies to the provision of legal services but not to the provision of the non-legal services.

  Example for subsection (2)(c)

  A conveyancing agent as defined in the Agents Licensing Act 1979.

• (3)

  The regulations may make provision for or with respect to any of the following:

  • (a)

    the way in which disclosure is to be made;

  • (b)

    additional matters required to be disclosed in connection with the provision of legal services or non-legal services by a multi‑disciplinary partnership.

• (4)

  Without limiting subsection (3), the additional matters may include the kind of services provided by the multi-disciplinary partnership and whether the services are or are not covered by the insurance or other provisions of this Act.

• (5)

  A disclosure under this section to a person about the provision of legal services may relate to the provision of legal services on one occasion or on more than one occasion or on an on-going basis.

160Effect of non-disclosure of provision of certain services

• (1)

  This section applies if:

  • (a)

    section 159 applies in relation to a service that is provided to a person who has engaged a multi-disciplinary partnership to provide the service and that the person might reasonably assume to be a legal service; and

  • (b)

    a disclosure has not been made under that section in relation to the service.

• (2)

  The standard of care owed by the multi-disciplinary partnership in respect of the service is the standard that would be applicable if the service had been provided by an Australian legal practitioner.

161Application of legal profession rules

Legal profession rules, so far as they apply to Australian legal practitioners, also apply to Australian legal practitioners who are legal practitioner partners or employees of a multi-disciplinary partnership, unless the rules otherwise provide.

162Requirements relating to advertising

• (1)

  Any restriction imposed by or under this Act or any other Act, the regulations or legal profession rules in connection with advertising by Australian legal practitioners applies to advertising by a multi‑disciplinary partnership with respect to the provision of legal services.

• (2)

  If a restriction referred to in subsection (1) is limited to a particular branch of the legal profession or for persons who practise in a particular style of legal practice, the restriction applies only to the extent that the multi-disciplinary partnership carries on the business of the relevant class of Australian legal practitioners.

• (3)

  An advertisement of the kind referred to in this section is, for disciplinary proceedings taken against an Australian legal practitioner, taken to have been authorised by each legal practitioner partner of the multi-disciplinary partnership.

• (4)

  This section does not apply if the provision by which the restriction is imposed expressly excludes its applications to multi-disciplinary partnerships.

163Sharing of receipts, revenue or other income

• (1)

  Nothing in this Act prevents a legal practitioner partner, or an Australian legal practitioner who is an employee of a multi disciplinary partnership, from sharing receipts, revenue or other income arising from the provision of legal services by the partner or practitioner with a partner or partners who are not Australian legal practitioners.

• (2)

  This section does not extend to the sharing of receipts, revenue or other income in contravention of section 164 and has effect subject to section 74.

164Disqualified persons

A legal practitioner partner of a multi-disciplinary partnership is guilty of an offence if the partner knowingly:

• (a)

  is a partner of a disqualified person in the partnership; or

• (b)

  shares with a disqualified person the receipts, revenue or other income arising from the provision of legal services by the partnership; or

• (c)

  employs or pays a disqualified person in connection with the provision of legal services by the partnership.

Maximum penalty:          500 penalty units.

165Prohibition on partnerships with certain partners who are not Australian legal practitioners

• (1)

  This section applies to a person who:

  • (a)

    is not an Australian legal practitioner; and

  • (b)

    is or was a partner of an Australian legal practitioner.

• (2)

  On application by the Law Society, the Supreme Court may make an order prohibiting any Australian legal practitioner from being a partner, in a business that includes the provision of legal services, of a specified person to whom this section applies if:

  • (a)

    the Court is satisfied the person is not a fit and proper person to be a partner; or

  • (b)

    the Court is satisfied 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; or

  • (c)

    in the case of a corporation – the Court is satisfied the corporation has been disqualified from providing legal services in this jurisdiction or there are grounds for disqualifying the corporation from providing legal services in this jurisdiction.

• (3)

  An order made under this section may be revoked by the Court on application by the Society or by the person against whom the order was made.

• (4)

  The death of an Australian legal practitioner does not prevent an application being made for, or the making of, an order under this section in relation to a person who was a partner of the practitioner.

• (5)

  The regulations may make provision for or with respect to the publication and notification of orders made under this section.

166Undue influence

A person is guilty of an offence if:

• (a)

  the person causes or induces another person to contravene this Act or his or her professional obligations as an Australian legal practitioner; and

• (b)

  the other person is:

  • (i)

    a legal practitioner partner of a multi-disciplinary partnership; or

  • (ii)

    another Australian legal practitioner who is an employee of a multi-disciplinary partnership and provides legal services.

Maximum penalty:          400 penalty units or imprisonment for 2 years.

Division 4Miscellaneous matters 167Obligations of individual practitioners not affected

Except as provided by this Part, nothing in this Part affects any obligation imposed on:

• (a)

  a legal practitioner director or an Australian legal practitioner who is an employee of an incorporated legal practice; or

• (b)

  a legal practitioner partner or an Australian legal practitioner who is an employee of a multi-disciplinary partnership;

under this Act or any other Act in his or her capacity as an Australian legal practitioner.

168Regulations

• (1)

  The regulations may make provision for or with respect to any of the following matters:

  • (a)

    the legal services provided by incorporated legal practices or legal practitioner partners or employees of multi-disciplinary partnerships;

  • (b)

    other services provided by incorporated legal practices or legal practitioner partners or employees of multi-disciplinary partnerships in circumstances where a conflict of interest relating to the provision of legal services may arise.

• (2)

  A regulation prevails over any inconsistent provision of the legal profession rules.

• (3)

  A regulation may provide that a breach of the regulations is capable of constituting unsatisfactory professional conduct or professional misconduct:

  • (a)

    in the case of an incorporated legal practice – by a legal practitioner director, or by an Australian legal practitioner responsible for the breach, or both; or

  • (b)

    in the case of a multi-disciplinary partnership – by a legal practitioner partner, or by an Australian legal practitioner responsible for the breach, or both.

  Part 2.7Legal practice by foreign lawyers

Division 1Preliminary matters 169Purpose

The purpose of this Part is to encourage and facilitate the internationalisation of legal services and the legal services sector by providing a framework for the regulation of the practice of foreign law in this jurisdiction by foreign lawyers as a recognised aspect of legal practice in this jurisdiction.

170Definitions

In this Part:

Australia includes the external Territories.

Australian law means law of the Commonwealth or of a jurisdiction.

foreign law means law of a foreign country.

foreign law practice means a partnership or corporate entity that is entitled to engage in legal practice in a foreign country.

foreign registration authority means an entity in a foreign country having the function, conferred by the law of the foreign country, of registering persons to engage in legal practice in the country.

local registration certificate means a registration certificate given under this Part.

overseas-registered foreign lawyer means an individual who is properly registered to engage in legal practice in a foreign country by the foreign registration authority for the country.

practise foreign law means doing work, or transacting business, in this jurisdiction concerning foreign law, being work or business of a kind that, if it concerned the law of this jurisdiction, would ordinarily be done or transacted by an Australian legal practitioner.

registered, when used in connection with a foreign country, means having all necessary licences, approvals, admissions, certificates or other forms of authorisation (including practising certificates) required by or under legislation for engaging in legal practice in the country.

171Part does not apply to Australian legal practitioners

• (1)

  This Part does not apply to an Australian legal practitioner (including an Australian legal practitioner who is also an overseas-registered foreign lawyer).

• (2)

  Accordingly, nothing in this Part requires or enables an Australian legal practitioner (including an Australian legal practitioner who is also an overseas-registered foreign lawyer) to be registered as a foreign lawyer under this Act in order to practise foreign law in this jurisdiction.

Division 2Practice of foreign law 172Requirement for registration

• (1)

  A person is guilty of an offence if:

  • (a)

    the person practises foreign law in this jurisdiction; and

  • (b)

    the person is not;

    • (i)

      an Australian-registered foreign lawyer; or

    • (ii)

      an Australian legal practitioner.

  Maximum penalty:          500 penalty units.

• (2)

  Subsection (1) does not apply to an overseas-registered foreign lawyer:

  • (a)

    who:

    • (i)

      practises foreign law in this jurisdiction for one or more periods that do not in aggregate exceed 90 days in any period of 12 months; or

    • (ii)

      is subject to a restriction imposed under the Migration Act 1958 (Cth) that has the effect of limiting the period during which work may be done, or business transacted, in Australia by the person; and

  • (b)

    who:

    • (i)

      does not maintain an office for practising foreign law in this jurisdiction; or

    • (ii)

      does not become a partner or director of a law practice.

    173Entitlement of Australian-registered foreign lawyer to practise in this jurisdiction

  An Australian-registered foreign lawyer is, subject to this Act, entitled to practise foreign law in this jurisdiction.

174Scope of practice

• (1)

  An Australian-registered foreign lawyer may provide only the following legal services in this jurisdiction:

  • (a)

    doing work, or transacting business, concerning the law of a foreign country where the lawyer is registered by the foreign registration authority for the country;

  • (b)

    legal services (including appearances) in relation to arbitration proceedings of a kind prescribed by the regulations;

  • (c)

    legal services (including appearances) in relation to proceedings before bodies other than courts, being proceedings in which the body concerned is not required to apply the rules of evidence and in which knowledge of the foreign law of a country referred to in paragraph (a) is essential;

  • (d)

    legal services for conciliation, mediation and other forms of consensual dispute resolution of a kind prescribed by the regulations.

• (2)

  Nothing in this Act authorises an Australian-registered foreign lawyer to appear in any court (except on the lawyer’s own behalf) or to practise Australian law in this jurisdiction.

• (3)

  Despite subsection (2), an Australian-registered foreign lawyer may advise on the effect of an Australian law if:

  • (a)

    the giving of advice on Australian law is necessarily incidental to the practice of foreign law; and

  • (b)

    the advice is expressly based on advice given on the Australian law by an Australian legal practitioner who is not an employee of the foreign lawyer.

  175Form of practice
• (1)

  An Australian-registered foreign lawyer may (subject to any conditions attaching to the foreign lawyer’s registration) practise foreign law:

  • (a)

    on the foreign lawyer’s own account; or

  • (b)

    in partnership with one or more Australian-registered foreign lawyers or one or more Australian legal practitioners, or both, in circumstances where, if the Australian-registered foreign lawyer were an Australian legal practitioner, the partnership would be permitted under a law of this jurisdiction; or

  • (c)

    as a director or employee of an incorporated legal practice or a partner or employee of a multi-disciplinary partnership that is permitted by a law of this jurisdiction; or

  • (d)

    as an employee of an Australian legal practitioner or law firm in circumstances where, if the Australian-registered foreign lawyer were an Australian legal practitioner, the employment would be permitted under a law of this jurisdiction; or

  • (e)

    as an employee of an Australian-registered foreign lawyer.

• (2)

  An affiliation referred to in subsection (1)(b) to (e) does not entitle the Australian-registered foreign lawyer to practise Australian law in this jurisdiction.

176Application of Australian professional ethical and practice standards

• (1)

  An Australian-registered foreign lawyer must not engage in any conduct in practising foreign law that would, if the conduct were engaged in by an Australian legal practitioner in practising Australian law in this jurisdiction, be capable of constituting professional misconduct or unsatisfactory professional conduct.

• (2)

  Chapter 4 applies to a person who:

  • (a)

    is an Australian-registered foreign lawyer; or

  • (b)

    was an Australian-registered foreign lawyer when the relevant conduct allegedly occurred, but is no longer an Australian-registered foreign lawyer (in which case Chapter 4 applies as if the person were an Australian-registered foreign lawyer);

  and so applies as if references in Chapter 4 to an Australian legal practitioner were references to a person of that kind.

• (3)

  The regulations may make provision for or with respect to the application (with or without modifications) of the provisions of Chapter 4 for this section.

• (4)

  Without limiting the matters that may be taken into account in deciding whether a person should be disciplined for a contravention of subsection (1), the following matters may be taken into account:

  • (a)

    whether the conduct of the person was consistent with the standard of professional conduct of the legal profession in any foreign country where the person is registered;

  • (b)

    whether the person contravened the subsection intentionally or without reasonable excuse.

• (5)

  Without limiting any other provision of this section or the orders that may be made under Chapter 4 as applied by this section, the following orders may be made under that Chapter as applied by this section:

  • (a)

    an order that a person’s registration under this Act as a foreign lawyer be cancelled;

  • (b)

    an order that a person’s registration under a corresponding law as a foreign lawyer be cancelled.

  177Designation
• (1)

  An Australian-registered foreign lawyer may use only the following designations:

  • (a)

    the lawyer’s own name;

  • (b)

    a title or business name the lawyer is authorised by law to use in a foreign country where the lawyer is registered by a foreign registration authority;

  • (c)

    subject to this section, the name of a foreign law practice with which the lawyer is affiliated or associated (whether as a partner, director, employee or otherwise);

  • (d)

    if the lawyer is a principal of any law practice in Australia whose principals include both one or more Australian-registered foreign lawyers and one or more Australian legal practitioners – a description of the practice that includes reference to both Australian legal practitioners and Australian-registered foreign lawyers (for example, "Solicitors and locally-registered foreign lawyers" or "Australian solicitors and US attorneys").

• (2)

  An Australian-registered foreign lawyer who is a principal of a foreign law practice may use the practice’s name in or in connection with practising foreign law in this jurisdiction only if:

  • (a)

    the lawyer indicates, on the lawyer’s letterhead or any other document used in this jurisdiction to identify the lawyer as an overseas-registered foreign lawyer, that the foreign law practice practises only foreign law in this jurisdiction; and

  • (b)

    the lawyer has provided the Law Society with acceptable evidence that the lawyer is a principal of the foreign law practice.

• (3)

  An Australian-registered foreign lawyer who is a principal of a foreign law practice may use the name of the practice as referred to in this section whether or not other principals of the practice are Australian-registered foreign lawyers.

• (4)

  This section does not authorise the use of a name or other designation that contravenes any requirements of the law of this jurisdiction concerning the use of business names or that is likely to lead to any confusion with the name of any established domestic law practice or foreign law practice in this jurisdiction.

178Letterhead and other identifying documents

• (1)

  An Australian-registered foreign lawyer must indicate, in each public document distributed by the lawyer in connection with the lawyer’s practice of foreign law, the fact that the lawyer is an Australian-registered foreign lawyer and is restricted to the practice of foreign law.

• (2)

  Subsection (1) is satisfied if the lawyer includes in the public document the words:

  • (a)

    "registered foreign lawyer" or "registered foreign practitioner"; and

  • (b)

    "entitled to practise foreign law only".

• (3)

  An Australian-registered foreign lawyer may (but need not) include any or all of the following on any public document:

  • (a)

    an indication of all foreign countries in which the lawyer is registered to engage in legal practice;

  • (b)

    a description of himself or herself, and any law practice with which the lawyer is affiliated or associated, in any of the ways designated in section 177.

• (4)

  In this section:

  public document includes any business letter, statement of account, invoice, business card and promotional and advertising material.

179Advertising

• (1)

  An Australian-registered foreign lawyer is required to comply with any advertising restrictions imposed by the Law Society or by law on legal practice engaged in by an Australian legal practitioner that are relevant to the practice of law engaged in this jurisdiction.

• (2)

  Without limiting subsection (1), an Australian-registered foreign lawyer must not advertise (or use any description on the lawyer’s letterhead or any other document used in this jurisdiction to identify the lawyer as a lawyer) in any way that:

  • (a)

    might reasonably be regarded as:

    • (i)

      false, misleading or deceptive; or

    • (ii)

      suggesting that the Australian-registered foreign lawyer is an Australian legal practitioner; or

  • (b)

    contravenes any requirements of the regulations.

  180Foreign lawyer employing Australian legal practitioner
• (1)

  An Australian-registered foreign lawyer may employ one or more Australian legal practitioners.

• (2)

  Employment of an Australian legal practitioner does not entitle an Australian-registered foreign lawyer to practise Australian law in this jurisdiction.

• (3)

  An Australian legal practitioner employed by an Australian-registered foreign lawyer may practise foreign law.

• (4)

  An Australian legal practitioner employed by an Australian-registered foreign lawyer must not:

  • (a)

    provide advice on Australian law to, or for use by, the Australian-registered foreign lawyer; or

  • (b)

    otherwise practise Australian law in this jurisdiction in the course of that employment.

• (5)

  Subsection (4) does not apply to an Australian legal practitioner employed by a law firm a partner of which is an Australian-registered foreign lawyer, if at least one other partner is an Australian legal practitioner.

• (6)

  Any period of employment of an Australian legal practitioner by an Australian-registered foreign lawyer cannot be used to satisfy a requirement imposed by a condition on a local practising certificate to complete a period of supervised legal practice.

181Trust money and trust accounts

• (1)

  The provisions of Part 3.1, and any other provisions of this Act, relating to requirements for trust money and trust accounts, apply (subject to this section) to Australian-registered foreign lawyers in the same way as they apply to law practices and Australian legal practitioners.

• (2)

  In this section, a reference to money is not limited to a reference to money in this jurisdiction.

• (3)

  The regulations may make provision with respect to the application (with or without modification) of the provisions of this Act relating to trust money and trust accounts for this section.

182Professional Indemnity insurance

• (1)

  An Australian-registered foreign lawyer must, at all times while practising foreign law in this jurisdiction, comply with one of the following:

• • (a)

    the foreign lawyer must have professional indemnity insurance that conforms with the requirements for professional indemnity insurance applicable for Australian legal practitioners in any jurisdiction;

  • (b)

    if the foreign lawyer does not have professional indemnity insurance that complies with paragraph (a) – the foreign lawyer:

    • (i)

      must have professional indemnity insurance that covers the practice of foreign law in this jurisdiction and that complies with the relevant requirements of a foreign law or foreign registration authority; and

    • (ii)

      if the insurance is for less than $1.5 million (inclusive of defence costs) – must provide a disclosure statement to each client disclosing the level of cover;

  • (c)

    if the foreign lawyer does not have professional indemnity insurance that complies with paragraph (a) or (b) – the foreign lawyer must provide a disclosure statement to each client specifying the lawyer does not have complying professional indemnity insurance.

• (2)

  A disclosure statement must be made in writing before, or as soon as practicable after, the foreign lawyer is retained in the matter.

• (3)

  A disclosure statement provided to a person before the foreign lawyer is retained in a matter is taken to be provided to the person as a client for this section.

• (4)

  A disclosure statement is not valid unless it is given in accordance with, and otherwise complies with, any applicable requirements of the regulations.

183Fidelity cover

The regulations may provide that provisions of Part 3.5 apply to classes of Australian-registered foreign lawyers prescribed by the regulations and so apply with any modifications specified in the regulations.

Division 3Local registration of foreign lawyers generally 184Local registration of foreign lawyers

Overseas-registered foreign lawyers may be registered as foreign lawyers under this Act.

185Duration of registration

• (1)

  Registration as a foreign lawyer granted under this Act is in force from the day specified in the local registration certificate until the end of the financial year in which it is granted, unless the registration is sooner suspended or cancelled.

• (2)

  Registration as a foreign lawyer renewed under this Act is in force until the end of the financial year following its previous period of currency, unless the registration is sooner suspended or cancelled.

• (3)

  If an application for the renewal of registration as a foreign lawyer has not been decided by the following 1 July, the registration:

  • (a)

    continues in force on and from that 1 July until the Law Society renews or refuses to renew the registration or the holder withdraws the application for renewal, unless the registration is sooner suspended or cancelled; and

  • (b)

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

  186Locally-registered foreign lawyer is not officer of Supreme Court

  A locally-registered foreign lawyer is not an officer of the Supreme Court.

Division 4Applications for grant or renewal of local registration 187Application for grant or renewal of registration

An overseas-registered foreign lawyer may apply to the Law Society for the grant or renewal of registration as a foreign lawyer under this Act.

188Manner of application

• (1)

  An application for the grant or renewal of registration as a foreign lawyer must be:

  • (a)

    made in the approved form; and

  • (b)

    accompanied by the fee prescribed by the regulations.

• (2)

  Different fees may be set according to different factors.

• (3)

  The fees must not be greater than the maximum fees for a local practising certificate.

• (4)

  The Society may also require the applicant to pay any reasonable costs and expenses incurred by the Society in considering the application, including (for example) costs and expenses of making inquiries and obtaining information or documents about whether the applicant meets the criteria for registration.

• (5)

  The fees and costs must not include any component for compulsory membership of any professional association.

• (6)

  The approved form may require the applicant to disclose:

  • (a)

    matters that may affect the Society’s consideration of the application for the grant or renewal of registration; and

  • (b)

    particulars of any offences for which the applicant has been convicted in Australia or a foreign country, whether before or after the commencement of this section.

• (7)

  The approved form may indicate that convictions of a particular kind need not be disclosed for the purposes of the current application.

• (8)

  The approved form may indicate that specified kinds of matters or particulars previously disclosed in a particular manner need not be disclosed for the purposes of the current application.

189Requirements regarding applications for grant or renewal of registration

• (1)

  An application for grant of registration must specify the applicant’s educational and professional qualifications.

• (2)

  An application for grant or renewal of registration must:

  • (a)

    specify that the applicant is registered to engage in legal practice by one or more specified foreign registration authorities in one or more foreign countries; and

  • (b)

    specify that the applicant is not an Australian legal practitioner; and

  • (c)

    specify that the applicant is not the subject of disciplinary proceedings in Australia or a foreign country (including any preliminary investigations or action that might lead to disciplinary proceedings) in the applicant’s capacity as:

    • (i)

      an overseas-registered foreign lawyer; or

    • (ii)

      an Australian-registered foreign lawyer; or

    • (iii)

      an Australian lawyer; and

  • (d)

    specify whether the applicant has been convicted of an offence in Australia or a foreign country and if so:

    • (i)

      the nature of the offence; and

    • (ii)

      how long ago the offence was committed; and

    • (iii)

      the applicant’s age when the offence was committed; and

  • (e)

    specify that the applicant’s registration is not cancelled or currently suspended in any place as a result of any disciplinary action in Australia or a foreign country; and

  • (f)

    specify:

    • (i)

      that the applicant is not otherwise personally prohibited from engaging in legal practice in any place or bound by any undertaking not to engage in legal practice in any place; and

    • (ii)

      whether or not the applicant is subject to any special conditions in engaging in legal practice in any place;

  as a result of criminal, civil or disciplinary proceedings in Australia or a foreign country; and

  • (g)

    specify any special conditions imposed in Australia or a foreign country as a restriction on legal practice engaged in by the applicant or any undertaking given by the applicant restricting the applicant’s practice of law; and

  • (h)

    give consent to the making of inquiries of, and the exchange of information with, any foreign registration authorities the Law Society considers appropriate regarding the applicant’s activities in engaging in legal practice in the places concerned or otherwise regarding matters relevant to the application; and

  • (i)

    specify which of the paragraphs of section 182(1) the applicant proposes to rely on and be accompanied by supporting proof of the relevant matters; and

  • (j)

    provide the information or be accompanied by the other information or documents (or both) that is specified in the application form or in material accompanying the application form as provided by the Society.

• (3)

  The application must (if the Society so requires) be accompanied by an original instrument, or a copy of an original instrument, from each foreign registration authority specified in the application that:

  • (a)

    verifies the applicant’s educational and professional qualifications; and

  • (b)

    verifies the applicant’s registration by the authority to engage in legal practice in the foreign country concerned and the date of registration; and

  • (c)

    describes anything done by the applicant in engaging in legal practice in that foreign country of which the authority is aware and that, in the opinion of the authority, has had or is likely to have had an adverse effect on the applicant’s professional standing within the legal profession of that place.

• (4)

  The applicant must (if the Society so requires) certify in the application that the accompanying instrument is the original or a complete and accurate copy of the original.

• (5)

  The Society may require the applicant to verify the statements in the application by statutory declaration or by other proof acceptable to the Society.

• (6)

  If the accompanying instrument is not in English, it must be accompanied by a translation in English that is authenticated or certified to the satisfaction of the Society.

Division 5Grant or renewal of registration 190Grant or renewal of registration

• (1)

  The Law Society must consider an application that has been made for the grant or renewal of registration as a foreign lawyer and may:

  • (a)

    grant or refuse to grant the registration; or

  • (b)

    renew or refuse to renew the registration.

• (2)

  The Society may, when granting or renewing registration, impose conditions as referred to in section 210.

• (3)

  If the Society grants or renews registration, it must, as soon as practicable, give the applicant a registration certificate or a notice of renewal.

• (4)

  If the Society:

  • (a)

    refuses to grant or renew registration; or

  • (b)

    imposes a condition of the registration and the applicant does not agree to the condition;

  the Society must, as soon as practicable, give the applicant an information notice.

• (5)

  A notice of renewal may be in the form of a new registration certificate or any other form the Society considers appropriate.

191Requirement to grant or renew registration if criteria satisfied

• (1)

  The Law Society must grant an application for registration as a foreign lawyer if the Society:

  • (a)

    is satisfied the applicant is registered to engage in legal practice in one or more foreign countries and is not an Australian legal practitioner; and

  • (b)

    considers an effective system exists for regulating engaging in legal practice in one or more of the foreign countries; and

  • (c)

    considers the applicant is not, as a result of criminal, civil or disciplinary proceedings in any of the foreign countries, subject to:

    • (i)

      any special conditions in engaging in legal practice in any of the foreign countries; or

    • (ii)

      any undertakings concerning engaging in legal practice in any of the foreign countries;

  that would make it inappropriate to register the person; and

  • (d)

    is satisfied the applicant demonstrates an intention to commence practising foreign law in this jurisdiction within a reasonable period if registration were to be granted;

  unless the Society refuses the application under this Part.

• (2)

  The Society must grant an application for renewal of a person’s registration, unless the Society refuses renewal under this Part.

• (3)

  Residence or domicile in this jurisdiction is not to be a prerequisite for or a factor in entitlement to the grant or renewal of registration.

192Refusal to grant or renew registration

• (1)

  The Law Society may refuse to consider an application if:

  • (a)

    it is not made in accordance with this Act; or

  • (b)

    the fee prescribed by the regulations and costs have not been paid.

• (2)

  The Society may refuse to grant or renew registration if:

  • (a)

    the application is not accompanied by, or does not contain, the information required by this Part or prescribed by the regulations; or

  • (b)

    the applicant has contravened this Act or a corresponding law; or

  • (c)

    the applicant has contravened an order of the Disciplinary Tribunal or a corresponding disciplinary body, including but not limited to an order to pay any fine or costs; or

  • (d)

    the applicant has contravened an order of a regulatory authority of any jurisdiction to pay any fine or costs; or

  • (e)

    the applicant has failed to comply with a requirement under this Act to pay a contribution to, or levy for, the Fidelity Fund; or

  • (f)

    the applicant has contravened a requirement of or made under this Act about professional indemnity insurance; or

  • (g)

    the applicant has failed to pay any expenses of receivership payable under this Act; or

  • (h)

    the applicant’s foreign legal practice is in receivership (however described).

• (3)

  The Society may refuse to grant or renew registration if an authority of another jurisdiction has under a corresponding law:

  • (a)

    refused to grant or renew registration for the applicant; or

  • (b)

    suspended or cancelled the applicant’s registration.

• (4)

  The Society may refuse to grant registration if it is satisfied the applicant is not a fit and proper person to be registered after considering:

  • (a)

    the nature of any offence for which the applicant has been convicted in Australia or a foreign country, whether before or after the commencement of this section; and

  • (b)

    how long ago the offence was committed; and

  • (c)

    the person’s age when the offence was committed.

• (5)

  The Society may refuse to renew registration if it is satisfied the applicant is not a fit and proper person to continue to be registered after considering:

  • (a)

    the nature of any offence for which the applicant has been convicted in Australia or a foreign country, whether before or after the commencement of this section, other than an offence disclosed in a previous application to the Society; and

  • (b)

    how long ago the offence was committed; and

  • (c)

    the person’s age when the offence was committed.

• (6)

  The Society may refuse to grant or renew registration on any ground on which registration could be suspended or cancelled.

• (7)

  If the Society refuses to grant or renew registration, the Society must, as soon as practicable, give the applicant an information notice.

• (8)

  Nothing in this section affects the operation of Division 7.

Division 6Amendment, suspension or cancellation of local registration 193Application of this Division

This Division does not apply in relation to matters referred to in Division 7.

194Grounds for amending, suspending or cancelling registration

• (1)

  Each of the following is a ground for amending, suspending or cancelling a person’s registration as a foreign lawyer:

  • (a)

    the registration was obtained because of incorrect or misleading information;

  • (b)

    the person contravenes a requirement of this Part;

  • (c)

    the person contravenes a condition imposed on the person’s registration;

  • (d)

    the person becomes the subject of disciplinary proceedings in Australia or a foreign country (including any preliminary investigations or action that might lead to disciplinary proceedings) in the person’s capacity as:

    • (i)

      an overseas-registered foreign lawyer; or

    • (ii)

      an Australian-registered foreign lawyer; or

    • (iii)

      an Australian lawyer;

  • (e)

    the person is a party in pending criminal or civil proceedings in Australia or a foreign country, or is convicted of an offence, that is likely to result in disciplinary action being taken against the person;

  • (f)

    the person’s registration is cancelled or currently suspended in any place because of disciplinary action in Australia or a foreign country;

  • (g)

    the person does not meet the requirements of section 182;

  • (h)

    the person has become an insolvent under administration;

  • (i)

    another ground the Law Society considers sufficient.

• (2)

  Subsection (1) does not limit the grounds on which conditions may be imposed on registration as a foreign lawyer under section 210.

195Amending, suspending or cancelling registration

• (1)

  If the Law Society considers reasonable grounds exist to amend, suspend or cancel a person’s registration by it as a foreign lawyer (the action), the Society must give the person a notice that:

  • (a)

    specifies the action proposed and:

    • (i)

      if the proposed action is to amend the registration in any way – specifies the proposed amendment; and

    • (ii)

      if the proposed action is to suspend the registration – specifies the proposed suspension period; and

  • (b)

    specifies the grounds for proposing to take the action; and

  • (c)

    outlines the facts and circumstances that form the basis for the Society’s belief; and

  • (d)

    invites the person to make written representations to the Society, within a specified time not less than 7 days and not more than 28 days, as to why the action proposed should not be taken.

• (2)

  If, after considering all written representations made within the specified time, the Society still believes grounds exist to take the action, the Society may:

  • (a)

    if the notice specified the action proposed was to amend the registration – amend the registration in the way specified or in another way the Society considers appropriate in the light of the representations; or

  • (b)

    if the notice specified the action proposed was to suspend the registration for a specified period – suspend the registration for a period no longer than the specified period; or

  • (c)

    if the notice specified the action proposed was to cancel the registration:

    • (i)

      cancel the registration; or

    • (ii)

      suspend the registration for a period; or

    • (iii)

      amend the registration in a less onerous way the Society considers appropriate because of the representations.

• (3)

  The Society may, at its discretion, consider representations made after the specified time.

• (4)

  The Society must give the person notice of the Society’s decision.

• (5)

  If the Society amends, suspends or cancels the registration, the Society must give the person an information notice.

• (6)

  In this section:

  amend, registration, means amend the registration by imposing a condition under section 216 during its currency, otherwise than at the request of the foreign lawyer concerned.

196Operation of amendment, suspension or cancellation of registration

• (1)

  This section applies if a decision is made to amend, suspend or cancel a person’s registration under section 195.

• (2)

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

  • (a)

    the day notice of the decision is given to the person;

  • (b)

    the day specified in the notice.

• (3)

  If the registration is amended, suspended or cancelled because the person has been convicted of an offence:

  • (a)

    the Supreme Court may, on the application of the person, order that the operation of the amendment, suspension or cancellation of the registration be stayed until:

    • (i)

      the end of the time to appeal against the conviction; and

    • (ii)

      if an appeal is made against the conviction – the appeal is finally decided, lapses or otherwise ends; and

  • (b)

    the amendment, suspension or cancellation does not have effect during any period in relation to which the stay is in force.

• (4)

  If the registration is amended, suspended or cancelled because the person has been convicted of an offence and the conviction is quashed:

  • (a)

    the amendment or suspension ceases to have effect when the conviction is quashed; or

  • (b)

    the cancellation ceases to have effect when the conviction is quashed and the registration is restored as if it had merely been suspended.

  197Other ways of amending or cancelling registration
• (1)

  The Law Society may amend or cancel the registration of a locally-registered foreign lawyer if the lawyer requests the Society to do so.

• (2)

  The Society may amend the registration of a locally-registered foreign lawyer:

  • (a)

    for a formal or clerical reason; or

  • (b)

    in another way that does not adversely affect the lawyer’s interests.

• (3)

  The amendment or cancellation of a registration under this section must be effected by written notice given to the foreign lawyer.

• (4)

  Section 195 does not apply in a case to which this section applies.

198Relationship of this Division with Chapter 4

Nothing in this Division prevents a complaint being made under Chapter 4 about a matter to which this Division relates.

Division 7Special powers in relation to local registration show cause events 199Applicant for local registration – show cause event

• (1)

  This section applies if:

  • (a)

    a person is applying for registration as a foreign lawyer under this Act; and

  • (b)

    a show cause event in relation to the person happened, whether before or after the commencement of this section, after the person first became an overseas-registered foreign lawyer.

• (2)

  As part of the application, the person must give the Law Society a written statement, in accordance with the regulations:

  • (a)

    about the show cause event; and

  • (b)

    explaining why, despite the show cause event, the applicant considers himself or herself to be a fit and proper person to be a locally-registered foreign lawyer.

• (3)

  However, the person need not provide a statement under subsection (2) if the person has previously provided to the Society a statement under this section, or a notice and statement under section 200, explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to be a locally-registered foreign lawyer.

200Locally-registered foreign lawyer – show cause event

• (1)

  This section applies to a show cause event that happens in relation to a locally-registered foreign lawyer.

• (2)

  The locally-registered foreign lawyer must provide to the Law Society both of the following:

  • (a)

    within 7 days after the happening of the event – notice, in the approved form, that the event happened;

  • (b)

    within 28 days after the happening of the event – a written statement explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to be a locally-registered foreign lawyer.

• (3)

  If a written statement is provided after the 28 days mentioned in subsection (2)(b), the Society may accept the statement and take it into consideration.

201Refusal, amendment, suspension or cancellation of local registration – failure to show cause

• (1)

  The Law Society may refuse to grant or renew, or may amend, suspend or cancel, local registration if the applicant for registration or the locally-registered foreign lawyer:

  • (a)

    is required by section 199 or 200 to give a written statement relating to a matter and has failed to comply with the requirement; or

  • (b)

    has given a written statement under section 199 or 200 but the Society does not consider the applicant or foreign lawyer has shown in the statement that, despite the show cause event concerned, the applicant or lawyer is a fit and proper person to be a locally-registered foreign lawyer.

• (2)

  For this section only, a written statement accepted by the Society under section 200(3) is taken to have been given under section 200.

• (3)

  The Society must give the applicant or foreign lawyer an information notice for the decision to refuse to grant or renew, or to suspend or cancel, the registration.

202Restriction on making further applications

• (1)

  If the Law Society decides under this Division to cancel a person’s registration, the Society may also decide that the person is not entitled to apply for registration under this Part for a specified period (being a period not exceeding 5 years).

• (2)

  A person for whom a decision has been made under this section, or under a provision of a corresponding law that corresponds to this section, is not entitled to apply for registration under this Part during the period specified in the decision.

• (3)

  As soon as practicable after making a decision under this section, the Society must give the person an information notice for the decision.

203Relationship of this Division with Part 46 and Chapter 6

• (1)

  The Law Society has and may exercise powers under Part 4.6 and Chapter 6, in relation to a matter under this Division, as if the matter were the subject of a complaint under Chapter 4.

• (2)

  Accordingly, the provisions of Part 4.6 and Chapter 6 apply (with the necessary modifications) in relation to a matter under this Division.

• (3)

  Nothing in this Division prevents a complaint being made under Chapter 4 about a matter to which this Division relates.

Division 8Further provisions relating to local registration 204Immediate suspension of registration

• (1)

  This section applies, despite sections 195 and 196 if the Law Society considers it necessary in the public interest to immediately suspend a person’s registration as a foreign lawyer.

• (2)

  The Society may, by written notice given to the person, immediately suspend the registration until the earlier of the following:

  • (a)

    the time at which the Society informs the person of the Society’s decision by notice under section 195;

  • (b)

    the end of the period of 56 days after the notice is given to the person under this section.

• (3)

  The notice under this section must:

  • (a)

    include an information notice about the suspension; and

  • (b)

    specify that the person may make written representations to the Society about the suspension.

• (4)

  The person may make written representations to the Society about the suspension, and the Society must consider the representations.

• (5)

  The Society may revoke the suspension at any time, whether or not in response to any written representations made to it by the person.

205Surrender of local registration certificate and cancellation of registration

• (1)

  A person registered as a foreign lawyer under this Part may surrender the local registration certificate to the Law Society.

• (2)

  The Society may cancel the registration.

206Automatic cancellation of registration on grant of practising certificate

A person’s registration as a foreign lawyer under this Part is taken to be cancelled if the person becomes an Australian legal practitioner.

207Suspension or cancellation of registration not to affect disciplinary processes

The suspension or cancellation of a person’s registration as a foreign lawyer under this Part does not affect any disciplinary processes in relation to matters arising before the suspension or cancellation.

208Return of local registration certificate on amendment, suspension or cancellation of registration

• (1)

  This section applies if a person’s registration under this Part as a foreign lawyer is amended, suspended or cancelled.

• (2)

  The Law Society may give the person a notice requiring the person to return the certificate to the Society in the way specified in the notice within a specified period of not less than 14 days.

• (3)

  The person must comply with the notice.

  Maximum penalty:          20 penalty units.

• (4)

  It is a defence to a prosecution for an offence against subsection (3) if the person has a reasonable excuse.

• (5)

  An offence against subsection (3) is an offence of strict liability.

• (6)

  If the certificate is amended, the Society must return the certificate to the person as soon as practicable after amending it.

Division 9Conditions on registration 209Conditions generally

Registration as a foreign lawyer under this Part is subject to:

• (a)

  any conditions imposed by the Law Society; and

• (b)

  any statutory conditions imposed by this or any other Act; and

• (c)

  any conditions imposed by or under the legal profession rules; and

• (d)

  any conditions imposed under Chapter 4 or under provisions of a corresponding law that correspond to Chapter 4.

210Conditions imposed by Law Society

• (1)

  The Law Society may impose conditions on registration as a foreign lawyer:

  • (a)

    when it is granted or renewed; or

  • (b)

    during its currency.

• (2)

  A condition imposed under this section must be reasonable and relevant.

• (3)

  A condition imposed under this section may be about any of the following:

  • (a)

    any matter in relation to which a condition could be imposed on a local practising certificate;

  • (b)

    a matter agreed to by the foreign lawyer.

• (4)

  The Society must not impose a condition under subsection (3)(a) that is more onerous than a condition that would be imposed on a local practising certificate of a local legal practitioner in the same or similar circumstances.

• (5)

  The Society may vary or revoke conditions imposed by it under this section.

211Imposition or variation of conditions pending criminal proceedings

• (1)

  If a person registered as a foreign lawyer under this Part has been charged with a relevant offence but the charge has not been decided, the Law Society may apply to the Disciplinary Tribunal for an order under this section.

• (2)

  On an application under subsection (1), the Tribunal, if it considers it appropriate to do so having regard to the seriousness of the offence and to the public interest, may make either or both of the following orders:

  • (a)

    an order varying the conditions on the practitioner’s registration;

  • (b)

    an order imposing further conditions on the practitioner’s registration.

• (3)

  An order under this section has effect until the sooner of:

  • (a)

    the end of the period specified by the Tribunal; or

  • (b)

    if the practitioner is convicted of the offence – 28 days after the day of the conviction; or

  • (c)

    if the charge is dismissed – the day of the dismissal.

• (4)

  The Tribunal, on application by any party, may vary or revoke an order under this section at any time.

• (5)

  In this section:

  relevant offence means a serious offence or an offence that would have to be disclosed under the admission rules in relation to an application for admission to the legal profession under this Act.

212Statutory condition regarding notice of offence

• (1)

  It is a statutory condition of registration as a foreign lawyer that the lawyer:

  • (a)

    must give written notice to the Law Society that the lawyer has been:

    • (i)

      convicted of an offence that would have to be disclosed in relation to an application for registration as a foreign lawyer under this Act; or

    • (ii)

      charged with a serious offence; and

  • (b)

    must do so within 7 days after the event.

• (2)

  The legal profession rules may specify:

  • (a)

    the particulars to be included in the notice; and

  • (b)

    the person to whom or the address to which the notice is to be sent or delivered.

• (3)

  This section does not apply to an offence to which Division 7 applies.

213Conditions imposed by legal profession rules

The regulations may:

• (a)

  impose conditions on the registration of foreign lawyers or any class of foreign lawyers; or

• (b)

  authorise conditions to be imposed on the registration of foreign lawyers or any class of foreign lawyers.

214Compliance with conditions

A locally-registered foreign lawyer must not contravene a condition to which the registration is subject.

Maximum penalty:          500 penalty units.

Division 10Interstate-registered foreign lawyers 215Extent of entitlement of interstate-registered foreign lawyer to practise in this jurisdiction

• (1)

  This Part does not authorise an interstate-registered foreign lawyer to practise foreign law in this jurisdiction to a greater extent than a locally-registered foreign lawyer could be authorised under a local registration certificate.

• (2)

  Also, an interstate-registered foreign lawyer’s right to practise foreign law in this jurisdiction:

  • (a)

    is subject to:

    • (i)

      any conditions imposed by the Law Society under section 216; and

    • (ii)

      any conditions imposed by or under the legal profession rules as referred to in that section; and

  • (b)

    is, to the greatest practicable extent and with all necessary modifications:

    • (i)

      the same as the interstate-registered foreign lawyer’s right to practise foreign law in the lawyer’s home jurisdiction; and

    • (ii)

      subject to any condition on the interstate-registered foreign lawyer’s right to practise foreign law in that jurisdiction.

• (3)

  If there is an inconsistency between conditions mentioned in subsection (2)(a) and conditions mentioned in subsection (2)(b), the conditions that are, in the opinion of the Society, more onerous prevail to the extent of the inconsistency.

• (4)

  An interstate-registered foreign lawyer must not practise foreign law in this jurisdiction in a way not authorised by this Act or in contravention of any condition referred to in this section.

216Additional conditions on practice of interstate-registered foreign lawyers

• (1)

  The Law Society may, by written notice to an interstate-registered foreign lawyer practising foreign law in this jurisdiction, impose any condition on the interstate-registered foreign lawyer’s practice that it may impose under this Act in relation to a locally-registered foreign lawyer.

• (2)

  Also, an interstate-registered foreign lawyer’s right to practise foreign law in this jurisdiction is subject to any condition imposed by or under an applicable legal profession rule.

• (3)

  Conditions imposed under or referred to in this section must not be more onerous than conditions applying to locally-registered foreign lawyers in the same or similar circumstances.

• (4)

  A notice under this section must include an information notice for the decision to impose a condition.

Division 11Miscellaneous matters 217Consideration and investigation of applicants and locally-registered foreign lawyers

• (1)

  To help it consider whether or not to grant, renew, suspend or cancel registration under this Part, or impose conditions on a person’s registration under this Part, the Law Society may, by notice to the applicant or locally-registered foreign lawyer, require the applicant or lawyer:

  • (a)

    to give it specified documents or information; or

  • (b)

    to cooperate with any inquiries it considers appropriate.

• (2)

  A failure to comply with the notice by the date specified in the notice and in the way required by the notice is a ground for making an adverse decision in relation to the action being considered by the Society.

218Register of locally-registered foreign lawyers

• (1)

  The Law Society must keep a register of the names of locally-registered foreign lawyers.

• (2)

  The register must:

  • (a)

    specify the conditions (if any) imposed on a foreign lawyer’s registration; and

  • (b)

    include other particulars prescribed by the regulations.

• (3)

  The register may be kept in the way the Society decides.

• (4)

  The register must be available for inspection, without charge, at the Society’s office during normal business hours.

219Publication of information about locally-registered foreign lawyers

The Law Society may publish, in circumstances that it considers appropriate, the names of persons registered by it as foreign lawyers under this Part and any relevant particulars concerning those persons.

220Supreme Court orders about conditions

• (1)

  The Law Society may apply to the Supreme Court for an order or injunction that an Australian-registered foreign lawyer not contravene a condition imposed under this Part.

• (2)

  An undertaking as to damages or costs is not required.

• (3)

  On hearing the application, the Court may make the order it considers appropriate.

• (4)

  This section does not limit section 700.

221Exemption by Law Society

• (1)

  The Law Society may exempt an Australian-registered foreign lawyer or class of Australian-registered foreign lawyers from compliance with:

  • (a)

    a specified provision of this Act; or

  • (b)

    a specified rule or part of a rule that would otherwise apply to the foreign lawyer or class of foreign lawyers.

• (2)

  An exemption may be granted unconditionally or subject to conditions specified in writing.

• (3)

  The Society may revoke or vary any conditions imposed under this section or impose new conditions.

222Membership of professional association

An Australian-registered foreign lawyer is not required to join (but may, if eligible, join) any professional association.

223Refund of fees

• (1)

  The regulations may provide for the refund of a portion of a fee paid in relation to registration as a foreign lawyer if it is suspended or cancelled during its currency.

• (2)

  Without limiting subsection (1), the regulations may specify:

  • (a)

    the circumstances in which a refund must be made; and

  • (b)

    the amount of the refund or the way in which the amount of the refund must be decided.

  224Appeals
• (1)

  An aggrieved person may appeal to the Supreme Court against any of the following decisions of the Law Society:

  • (a)

    a decision under section 190, 192 or 201 to refuse to grant or renew the registration of a person as a foreign lawyer;

  • (b)

    a decision under section 190 to impose a condition on the registration of a person as a foreign lawyer;

  • (c)

    a decision under section 216 to impose a condition on an interstate-registered foreign lawyer’s practice in this jurisdiction;

  • (d)

    a decision under section 202 that the person is not entitled to apply for registration under this Part for a specified period;

  • (e)

    a decision under section 195, 201 or 204 to amend, suspend or cancel a person’s registration as a foreign lawyer.

• (2)

  An aggrieved person is:

  • (a)

    the applicant for registration; or

  • (b)

    the locally-registered foreign lawyer or interstate-registered foreign lawyer concerned.

• (3)

  The appeal must be started by filing a notice of appeal within 28 days after receiving the information notice for the decision.

• (4)

  The notice of appeal must state fully the grounds of appeal.

• (5)

  On hearing the appeal, the Court may make the order it considers appropriate.

• (6)

  Except to the extent (if any) that may be ordered by the Court, the filing of an appeal does not stay the effect of the refusal, amendment, suspension or cancellation appealed against.

Part 2.8Complying community legal centres 225Purpose of Part

The purpose of this Part is to facilitate the provision of legal services by non-profit bodies corporate for community purposes.

226Definitions

In this Part:

employ means to employ under a contract of employment or service.

engage means to use the services of, whether or not for reward or remuneration.

supervising legal practitioner, see section 227(d).

227Complying community legal centre

A body corporate is a complying community legal centre if:

• (a)

  it is funded or expected to be funded to a significant level by donations or grants from government, charitable or other organisations; and

• (b)

  it holds itself out as providing legal services mentioned in paragraph (c), whether or not they are the only services it provides; and

• (c)

  it provides legal services, other than for deriving a profit:

  • (i)

    to persons or organisations lacking the financial means to obtain privately funded legal services; or

  • (ii)

    to persons or organisations in relation to a legal matter that is expected to raise issues of public interest or to be of general concern to disadvantaged groups in the community; or

  • (iii)

    to persons or organisations having a special need because of their location or the nature of the legal matter; or

  • (iv)

    to persons having a significant physical or social disability; and

• (d)

  it employs, or under an approval given under section 229, temporarily engages, a qualified legal practitioner who is responsible for the provision of the legal services (the supervising legal practitioner); and

• (e)

  it has given the Society the information and fee prescribed by the regulations.

228Qualifications of supervising legal practitioner

• (1)

  A legal practitioner is qualified as the supervising legal practitioner of a complying community legal centre if the practitioner is an Australian legal practitioner who holds an unrestricted practising certificate.

• (2)

  A complying community legal centre is not prevented from employing or temporarily engaging as the supervising legal practitioner a person who:

  • (a)

    is on the centre’s board of management (however described); or

  • (b)

    is involved in the centre’s management.

  229Temporary engagement of supervising legal practitioner
• (1)

  A complying community legal centre may apply to the Law Society for approval to temporarily engage the legal practitioner named in the application to be the centre’s supervising legal practitioner.

• (2)

  The Society may give written approval only if it is satisfied:

  • (a)

    the practitioner is an Australian legal practitioner who holds an unrestricted practising certificate; and

  • (b)

    it is not practicable for the centre to employ a supervising legal practitioner; and

  • (c)

    the person will be able to properly supervise the provision of legal services at the centre; and

  • (d)

    the benefits of the temporary engagement to the centre’s clients or potential clients will outweigh the disadvantage that would be caused to the clients if the centre were unable to provide legal services.

• (3)

  The approval is for the period, not exceeding 12 weeks, specified in it.

• (4)

  The centre may apply to the Society for further approvals under this section.

• (5)

  If the Society refuses to give an approval under this section it must, as soon as practicable:

  • (a)

    publish particulars of the refusal in the Gazette; and

  • (b)

    give notice of the refusal to the Statutory Supervisor.

• (6)

  Within 30 days after receiving the notice, the Supervisor:

  • (a)

    must review the Society’s decision; and

  • (b)

    must:

    • (i)

      refuse to revoke the decision; or

    • (ii)

      revoke the decision and approve the application.

• (7)

  The Supervisor may revoke the decision and approve the application only if satisfied it is in the public interest to do so.

• (8)

  If the Supervisor revokes the decision and approves the application, the Supervisor must:

  • (a)

    publish notice of the decision in the Gazette; and

  • (b)

    give the Society written reasons for the decision.

  230Notice of change in supervising legal practitioner
• (1)

  A complying community legal centre must give written notice to the Law Society of the name of, and of any change in, the supervising legal practitioner employed or engaged by it.

  Maximum penalty:          20 penalty units.

• (2)

  An offence against subsection (1) is an offence of strict liability.

231Application of

• (1)

  Subject to subsection (2) and the regulations, Parts 3.1, 3.4 and 3.5 and Chapters 5, 6 and 9 (the applied provisions) apply (with the necessary modifications) in relation to a complying community legal centre as if:

  • (a)

    a reference in the applied provisions to a law practice were a reference to a complying community legal centre; and

  • (b)

    the supervising legal practitioner of the centre were the principal of the practice.

• (2)

  In addition, a complying community legal centre must not operate a trust account under Part 3.1 unless the centre’s supervising legal practitioner is a signatory to the account.

• (3)

  For subsection (1), the following provisions also apply in relation to the application of the applied provisions:

  • (a)

    definitions necessary to give effect to the applied provisions;

  • (b)

    regulations made for the applied provisions.

  232Provision of legal services
• (1)

  A complying community legal centre does not contravene this Act merely because:

  • (a)

    it employs, or otherwise uses the services of, Australian legal practitioners to provide legal services to members of the public; or

  • (b)

    it has a contractual relationship with a member of the public to whom the legal services are provided or receives any fee, gain or reward for providing the legal services; or

  • (c)

    it shares with an Australian legal practitioner employed or otherwise used by it to provide the legal services receipts, revenue or other income arising from the business of the centre of a kind usually conducted by an Australian legal practitioner; or

  • (d)

    it adopts or uses the word "legal" or a name, title or description to which section 20 applies (or a related term) in its name or any registered business name under which it provides legal services to members of the public.

• (2)

  Subsection (1) has effect despite anything to the contrary in this Act.

• (3)

  The regulations may make provision in relation to:

  • (a)

    the application (with any modifications prescribed by the regulations) of a provision of this Act to a complying community legal centre; and

  • (b)

    the legal services provided by a complying community legal centre.

• (4)

  The regulations may provide that a breach of the regulations is capable of being unsatisfactory professional conduct or professional misconduct by an Australian legal practitioner responsible for the breach.

• (5)

  A provision of the legal profession rules that applies to an Australian legal practitioner also applies to an Australian legal practitioner who is an officer or employee of, or whose services are used by, a complying community legal centre, unless the rules otherwise provide.

233Entitlement to costs in proceedings

• (1)

  For the making or enforcement of an order for costs, or deciding an entitlement to costs, in a proceeding before a court or tribunal to which an assisted person is a party, the person is taken to be liable to pay:

  • (a)

    the ordinary professional costs of the legal services provided to the person or in connection with the proceeding; and

  • (b)

    disbursements and out-of-pocket expenses incurred in connection with the provision of the services.

• (2)

  In this section:

  assisted person means a person to whom legal services are provided by a complying community legal centre.

Chapter 3Conduct of legal practicePart 3.1Trust money and trust accountsDivision 1Preliminary matters 234Purposes of Part

The purposes of this Part are as follows:

• (a)

  to ensure trust money is held by law practices in a way that protects the interests of persons for whom money is held, both inside and outside this jurisdiction;

• (b)

  to minimise compliance requirements for law practices that provide legal services within and outside this jurisdiction;

• (c)

  to ensure the Law Society can work effectively with corresponding authorities in other jurisdictions in relation to the regulation of trust money and trust accounts.

235Interpretation

• (1)

  In this Part:

  approved ADI means an ADI approved under section 278 by the Law Society.

  approved trust account means a trust account approved under section 278 by the Law Society.

  controlled money means money received or held by a law practice in respect of which the practice has a written direction to deposit the money in an account (other than a general trust account) over which the practice has or will have exclusive control.

  Note for definition controlled money

  Section 248(6) prevents pooling of controlled money.

  controlled money account means an account maintained by a law practice with an ADI for the holding of controlled money received by the practice.

  deposit record includes a deposit slip or duplicate deposit slip.

  designated persons, for Division 3, Subdivision 2, see section 268(1).

  external examination means an external examination under Division 3, Subdivision 2 of a law practice’s trust records.

  external examiner means a person holding an appointment as an external examiner under Division 3, Subdivision 2.

  general trust account means an approved trust account maintained by a law practice for the holding of trust money received by the practice, other than controlled money or transit money.

  investigation means an investigation under Division 3, Subdivision 1 of the affairs of a law practice.

  investigator means a person holding an appointment as an investigator under Division 3, Subdivision 1.

  permanent form, in relation to a trust record, means printed or, on request, capable of being printed, in English on paper or other material.

  power includes authority.

  transit money means money received by a law practice subject to instructions to pay or deliver it to a third party, other than an associate of the practice.

  trust account means an account maintained by a law practice with an approved ADI to hold trust money.

  trust money means money entrusted to a law practice in the course of or in connection with the provision of legal services by the practice, and includes:

  • (a)

    money received by the practice on account of legal costs in advance of providing the services; and

  • (b)

    controlled money received by the practice; and

  • (c)

    transit money received by the practice; and

  • (d)

    money received by the practice, that is the subject of a power, exercisable by the practice or an associate of the practice, to deal with the money for or on behalf of another person.

  trust money protocols, see section 239(1).

  trust records includes the following documents:

  • (a)

    receipts;

  • (b)

    cheque butts or cheque requisitions;

  • (c)

    records of authorities to withdraw by electronic funds transfer;

  • (d)

    deposit records;

  • (e)

    trust account ADI statements;

  • (f)

    trust account receipts and payments cash books;

  • (g)

    trust ledger accounts;

  • (h)

    records of monthly trial balances;

  • (i)

    records of monthly reconciliations;

  • (j)

    trust transfer journals;

  • (k)

    statements of account as required to be furnished under the regulations;

  • (l)

    registers required to be kept under the regulations;

  • (m)

    monthly statements required to be kept under the regulations;

  • (n)

    files relating to trust transactions or bills of costs or both;

  • (o)

    written directions, authorities or other documents required to be kept under this Act;

  • (p)

    supporting information required to be kept under the regulations in relation to powers to deal with trust money.

• (2)

  A reference in this Part to a law practice’s trust account or trust records includes a reference to an associate’s trust account or trust records.

• (3)

  A reference in this Part to a power given to a law practice or an associate of the practice to deal with money for or on behalf of another person is a reference to a power given to the practice or associate that is exercisable by:

  • (a)

    the practice alone; or

  • (b)

    an associate of the practice alone (otherwise than in a private and personal capacity); or

  • (c)

    the practice or an associate of the practice jointly or severally, or jointly and severally, with either or both of the following:

    • (i)

      one or more associates of the practice;

    • (ii)

      the person, or one or more nominees of the person, for whom or on whose behalf the money may or is to be dealt with under the power.

    236Money involved in financial services or investments
• (1)

  Money that is entrusted to or held by a law practice for or in connection with the following is not trust money for this Act:

  • (a)

    a financial service provided by the practice or an associate of the practice in circumstances where the practice or associate is required to hold an Australian financial services licence covering the provision of the service (whether or not such a licence is held at any relevant time);

  • (b)

    a financial service provided by the practice or an associate of the practice in circumstances where the practice or associate provides the service as a representative of another person who carries on a financial services business (whether or not the practice or associate is an authorised representative at any relevant time).

• (2)

  Without limiting subsection (1), money that is entrusted to or held by a law practice for or in connection with a managed investment scheme, or mortgage financing, undertaken by the practice is not trust money for this Act.

• (3)

  Without limiting subsections (1) and (2), money that is entrusted to or held by a law practice for investment purposes, whether on its own account or as agent, is not trust money for this Act, unless:

  • (a)

    the money was entrusted to or held by the practice:

    • (i)

      in the ordinary course of legal practice; and

    • (ii)

      primarily in connection with the provision of legal services to or at the direction of the client; and

  • (b)

    the investment is or is to be made:

    • (i)

      in the ordinary course of legal practice; and

    • (ii)

      for the ancillary purpose of maintaining or enhancing the value of the money or property pending completion of the matter or further stages of the matter or pending payment or delivery of the money or property to or at the direction of the client.

• (4)

  In this section:

  Australian financial services licence, see Chapter 7 of the Corporations Act.

  authorised representative, see Chapter 7 of the Corporations Act.

  financial service, see Chapter 7 of the Corporations Act.

  financial services business, see Chapter 7 of the Corporations Act.

237Determinations about status of money

• (1)

  This section applies to money received by a law practice if the Law Society considers there is doubt or a dispute as to whether the money is trust money.

• (2)

  The Society may determine that the money is or is not trust money.

• (3)

  The Society may revoke or modify a determination under this section.

• (4)

  While a determination under this section is in force that money is trust money, the money is taken to be trust money for this Act.

• (5)

  While a determination under this section is in force that money is not trust money, the money is taken not to be trust money for this Act.

• (6)

  This section has effect subject to a decision of a court made in relation to the money concerned.

238Application of Part to law practices and trust money

• (1)

  This Part applies to the following law practices in respect of trust money received by them in this jurisdiction:

  • (a)

    a law practice that has an office in this jurisdiction, whether or not the practice has an office in another jurisdiction;

  • (b)

    a law practice that does not have an office in any jurisdiction at all.

• (2)

  This Part applies to the following law practices in respect of trust money received by them in another jurisdiction:

  • (a)

    a law practice that has an office in this jurisdiction and in no other jurisdiction;

  • (b)

    a law practice that has an office in this jurisdiction and in one or more other jurisdictions but not in the jurisdiction in which the trust money was received, unless the money is dealt with under the corresponding law of another jurisdiction.

• (3)

  However, this Part does not apply to:

  • (a)

    prescribed law practices or classes of law practices; or

  • (b)

    prescribed law practices or classes of law practices in prescribed circumstances; or

  • (c)

    prescribed kinds of trust money; or

  • (d)

    prescribed kinds of trust money in prescribed circumstances.

• (4)

  A reference in this section to having an office in a jurisdiction is a reference to having, or engaging in legal practice from, an office or business address in the jurisdiction.

  Note for section 238

  Section 181 applies this Part to Australian-registered foreign lawyers.

239Trust money protocols

• (1)

  The Law Society may enter into arrangements (trust money protocols) with corresponding authorities about any or all of the following:

  • (a)

    deciding the jurisdiction where a law practice receives trust money;

  • (b)

    sharing information about whether, and (if so) how, trust money is being dealt with under this Act or a corresponding law.

• (2)

  For this Act, to the extent a trust money protocol is relevant, the jurisdiction where a law practice receives trust money must be decided in accordance with the protocol.

• (3)

  The Society may enter into arrangements that amend, revoke or replace a trust money protocol.

• (4)

  A trust money protocol does not have effect in this jurisdiction unless it is embodied or identified in the regulations.

240When money is received

• (1)

  For this Act, a law practice receives money when:

  • (a)

    the practice obtains possession or control of it directly; or

  • (b)

    the practice obtains possession or control of it indirectly as a result of its delivery to an associate of the practice; or

  • (c)

    the practice, or an associate of the practice (otherwise than in a private and personal capacity), is given a power to deal with the money for or on behalf of another person.

• (2)

  For this Act, a law practice or associate is taken to have received money if the money is available to the practice or associate by means of an instrument or another way of authorising an ADI to credit or debit an amount to an account with the ADI, including, for example, an electronic funds transfer, credit card transaction or telegraphic transfer.

241Discharge by legal practitioner associate of obligations of law practice

• (1)

  The following actions, if taken by a legal practitioner associate of a law practice on behalf of the practice in relation to trust money received by the practice, discharge the corresponding obligations of the practice in relation to the money:

  • (a)

    the establishment of a trust account;

  • (b)

    the maintenance of a trust account;

  • (c)

    the payment of trust money into and out of a trust account and other dealings with trust money;

  • (d)

    the maintenance of trust records;

  • (e)

    engaging an external examiner to examine trust records;

  • (f)

    the payment of an amount into an ADI account as referred to in section 281;

  • (g)

    an action of a kind prescribed by the regulations.

• (2)

  If the legal practitioner associate maintains a trust account in relation to trust money received by the law practice, the provisions of this Part and the regulations made for this Part apply to the associate in the same way as they apply to a law practice.

• (3)

  Subsection (1) does not apply to the extent the associate is prevented by the regulations from taking any action referred to in that subsection.

242Liability of principals of law practice

• (1)

  A provision of this Part or the regulations made for this Part expressed as imposing an obligation on a law practice imposes the same obligation on the principals of the law practice jointly and severally, but discharge of the practice’s obligation also discharges the corresponding obligation imposed on the principals.

• (2)

  References in this Part or the regulations made for this Part to a law practice include references to the principals of the law practice.

243Former practices, principals and associates

This Part applies in relation to former law practices and former principals and associates of law practices in relation to conduct occurring while they were respectively law practices, principals and associates in the same way as it applies to law practices, principals and associates, and so applies with any necessary modifications.

244Barristers receiving money on behalf of other persons

• (1)

  A barrister must not, in the course of practising as a barrister, receive money on behalf of another person unless authorised under this section.

• (2)

  The regulations may authorise a barrister to do so.

• (3)

  For subsection (2), the regulations may apply to barristers any of the provisions of this Part or make other provision relating to the matter.

Division 2Trust accounts and trust money 245Maintenance of general trust account

• (1)

  A law practice that receives trust money to which this Part applies must maintain a general trust account in this jurisdiction.

• (2)

  A law practice that is required to maintain a general trust account in this jurisdiction must establish and maintain the account under the regulations.

• (3)

  Subsection (1) does not apply to a law practice in respect of any period during which the practice receives or holds only either or both of the following:

  • (a)

    controlled money;

  • (b)

    transit money received in a form other than cash.

• (4)

  If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1) or (2), the practitioner or practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (5)

  If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1) or (2), each principal of the practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (6)

  An offence against subsection (4) or (5) is an offence of strict liability.

• (7)

  Subject to any requirements of the regulations, a requirement of this section for a law practice to maintain, or establish and maintain, a general trust account in this jurisdiction does not prevent the practice from maintaining, or establishing and maintaining, more than one general trust account in this jurisdiction, whether during the same or different periods.

• (8)

  Without limiting the other provisions of this section, the regulations may provide that a law practice must not close a general trust account except as permitted by the regulations, either generally or in any circumstances prescribed by the regulations.

246Certain trust money to be deposited in general trust account

• (1)

  As soon as practicable after receiving trust money, a law practice must deposit the money in a general trust account of the practice.

• (2)

  Subsection (1) does not apply if:

  • (a)

    the practice has a written direction by an appropriate person to deal with it otherwise than by depositing it in the account; or

  • (b)

    the money is controlled money; or

  • (c)

    the money is transit money; or

  • (d)

    the money is the subject of a power given to the practice or an associate of the practice to deal with the money for or on behalf of another person.

• (3)

  A law practice that has received money that is the subject of a written direction mentioned in subsection (2)(a) must deal with the money in accordance with the direction:

  • (a)

    within the period (if any) specified in the direction; or

  • (b)

    subject to paragraph (a), as soon as practicable after it is received.

• (4)

  The law practice must keep a written direction mentioned in subsection (2)(a) for the period prescribed by the regulations.

• (5)

  If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1), (3) or (4), the practitioner or practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (6)

  If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1), (3) or (4), each principal of the practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (7)

  An offence against subsection (5) or (6) is an offence of strict liability.

• (8)

  A person is an appropriate person for this section if the person is legally entitled to give the law practice directions in respect of dealings with the trust money.

247Holding, disbursing and accounting for trust money

• (1)

  A law practice must:

  • (a)

    hold trust money deposited in a general trust account of the practice exclusively for the person on whose behalf it is received; and

  • (b)

    disburse the trust money only in accordance with a direction given by the person.

• (2)

  Subsection (1) applies subject to an order of a court of competent jurisdiction or as authorised by law.

• (3)

  The law practice must account for the trust money as required by the regulations.

• (4)

  If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1) or (3), the practitioner or practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (5)

  If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1) or (3), each principal of the practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (6)

  An offence against subsection (4) or (5) is an offence of strict liability.

248Controlled money

• (1)

  As soon as practicable after receiving controlled money, a law practice must deposit the money in the account specified in the written direction relating to the money.

• (2)

  The law practice must hold controlled money deposited in a controlled money account under subsection (1) exclusively for the person on whose behalf it was received.

• (3)

  The law practice must not disburse the controlled money deposited in a controlled money account under subsection (1) except in accordance with:

  • (a)

    the written direction mentioned in that subsection; or

  • (b)

    a later written direction given by or on behalf of the person on whose behalf the money was received.

• (4)

  The law practice must maintain the controlled money account, and account for the controlled money, as required by the regulations.

• (5)

  The law practice must keep a written direction mentioned in this section for the period prescribed by the regulations.

• (6)

  The law practice must ensure the controlled money account is used for the deposit of controlled money received on behalf of the person referred to in subsection (2), and not for the deposit of controlled money received on behalf of any other person, except to the extent the regulations otherwise permit.

• (7)

  Subsection (3) applies subject to an order of a court of competent jurisdiction or as authorised by law.

• (8)

  If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1), (2), (3), (4), (5) or (6), the practitioner or practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (9)

  If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1), (2), (3), (4), (5) or (6), each principal of the practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (10)

  An offence against subsection (8) or (9) is an offence of strict liability.

249Transit money

• (1)

  A law practice that has received transit money must pay or deliver the money as required by the instructions relating to the money:

  • (a)

    within the period (if any) specified in the instructions; or

  • (b)

    subject to paragraph (a), as soon as practicable after it is received.

• (2)

  The law practice must account for the money as required by the regulations.

• (3)

  Subsections (1) and (2) do not apply to trust money if section 251 applies to the money.

• (4)

  If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1) or (2), the practitioner or practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (5)

  If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1) or (2), each principal of the practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (6)

  An offence against subsection (4) or (5) is an offence of strict liability.

250Trust money subject to specific powers

• (1)

  A law practice must ensure trust money that is the subject of a power given to the practice or an associate of the practice is dealt with by the practice or associate only in accordance with the power relating to the money.

• (2)

  The law practice must account for the money in the way prescribed by the regulations.

• (3)

  Subsections (1) and (2) do not apply to trust money if section 251 applies to the money.

• (4)

  If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1) or (2), the practitioner or practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (5)

  If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1) or (2), each principal of the practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (6)

  An offence against subsection (4) or (5) is an offence of strict liability.

251Trust money received in form of cash

• (1)

  A law practice must deposit general trust money received in the form of cash in a general trust account of the practice.

• (2)

  If the law practice has a written direction by an appropriate person to deal with general trust money received in the form of cash otherwise than by first depositing it in a general trust account of the practice:

  • (a)

    the practice must nevertheless deposit the money in a general trust account of the practice under subsection (1); and

  • (b)

    afterwards, the practice must deal with the money in accordance with any applicable terms of the direction so far as those terms are not inconsistent with paragraph (a).

• (3)

  A law practice must deposit controlled money received in the form of cash in a controlled money account under section 248.

• (4)

  A law practice must deposit transit money received in the form of cash in a general trust account of the law practice concerned before the money is otherwise dealt with in accordance with the instructions relating to the money.

• (5)

  A law practice must deposit trust money that is received in the form of cash and is the subject of a power in a general trust account (or a controlled money account in the case of controlled money) of the practice before the money is otherwise dealt with in accordance with the power.

• (6)

  This section has effect despite anything to the contrary in any relevant direction, instruction or power.

• (7)

  If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1), (2), (3), (4) or (5), the practitioner or practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (8)

  If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1), (2), (3), (4) or (5), each principal of the practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (9)

  An offence against subsection (7) or (8) is an offence of strict liability.

• (10)

  In this section:

  appropriate person, in relation to trust money, means a person who is legally entitled to give the law practice concerned directions in respect of dealings with the money.

  general trust money means trust money, other than:

  • (a)

    controlled money; and

  • (b)

    transit money; and

  • (c)

    money that is the subject of a power.

  252Protection of trust money
• (1)

  Money standing to the credit of a trust account maintained by a law practice is not available for the payment of debts of the practice or any of its associates.

• (2)

  Money standing to the credit of a trust account maintained by a law practice is not liable to be attached or taken in execution for satisfying a judgment against the practice or any of its associates.

• (3)

  This section does not apply to money to which a law practice or associate is entitled.

253Intermixing money

• (1)

  A law practice must not mix trust money with other money.

• (2)

  Subsection (1) does not apply in relation to the mixing of trust money with other money if:

  • (a)

    the Law Society has authorised the mixing of the trust money with other money to the extent to which it is mixed; and

  • (b)

    the law practice has complied with any conditions imposed on the authorisation by the Society.

• (3)

  If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1), the practitioner or practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (4)

  If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1), each principal of the practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (5)

  An offence against subsection (3) or (4) is an offence of strict liability.

254Dealing with trust money – legal costs and unclaimed money

• (1)

  A law practice may do any of the following, in relation to trust money held in a general trust account or controlled money account of the practice for a person:

  • (a)

    exercise a lien, including a general retaining lien, for the amount of legal costs reasonably due and owing by the person to the practice;

  • (b)

    withdraw money for payment to the practice’s account for legal costs owing to the practice if the relevant procedures or requirements prescribed by this Act are complied with;

  • (c)

    after deducting any legal costs properly owing to the practice, deal with the balance as an unclaimed amount under section 259.

• (2)

  Subsection (1) applies despite any other provision of this Part but has effect subject to Part 3.3.

255Deficiency in trust account

• (1)

  An Australian legal practitioner is guilty of an offence if the practitioner causes:

  • (a)

    a deficiency in any trust account or trust ledger account; or

  • (b)

    a failure to pay or deliver any trust money.

  Maximum penalty:          500 penalty units.

• (2)

  It is a defence to a prosecution for an offence against subsection (1) if the practitioner has a reasonable excuse.

• (3)

  In this section:

  account, in relation to an Australian legal practitioner, includes an account of the practitioner or of the law practice of which the practitioner is an associate.

  cause includes be responsible for.

  deficiency in a trust account or trust ledger account includes the non-inclusion or exclusion of the whole or any part of an amount that is required to be included in the account.

256Reporting certain irregularities and suspected irregularities

• (1)

  A legal practitioner is guilty of an offence if:

  • (a)

    the practitioner is a legal practitioner associate of a law practice; and

  • (b)

    the practitioner becomes aware that there is an irregularity in any of the practice’s trust accounts or trust ledger accounts; and

  • (c)

    the practitioner fails, as soon as practicable after becoming aware of the irregularity, to give written notice of the irregularity to:

    • (i)

      the Law Society; and

    • (ii)

      if a corresponding authority is responsible for the regulation of the accounts concerned – the corresponding authority.

  Maximum penalty:          20 penalty units.

• (2)

  An Australian legal practitioner is guilty of an offence if:

  • (a)

    the practitioner believes on reasonable grounds that there is an irregularity in relation to the receipt, recording or disbursement of any trust money received by a law practice; and

  • (b)

    the practitioner is not a legal practitioner associate of the practice; and

  • (c)

    the practitioner fails, as soon as practicable after forming the belief, to give written notice of it to:

    • (i)

      the Law Society; and

    • (ii)

      if a corresponding authority is responsible for the regulation of the accounts relating to the trust money concerned – the corresponding authority.

  Maximum penalty:          20 penalty units.

• (3)

  The validity of a requirement imposed on an Australian legal practitioner under subsection (1) or (2) is not affected, and the practitioner is not excused from complying with subsection (1) or (2), on the ground that giving the notice may tend to incriminate the practitioner.

• (4)

  An Australian legal practitioner is not liable for any loss or damage suffered by another person as a result of the practitioner’s compliance with subsection (1) or (2).

257Keeping trust records

• (1)

  A law practice must keep in permanent form trust records in relation to trust money received by the practice.

• (2)

  The law practice must keep the trust records:

  • (a)

    in accordance with the regulations; and

  • (b)

    in a way that at all times discloses the true position in relation to trust money received for or on behalf of any person; and

  • (c)

    in a way that enables the trust records to be conveniently and properly investigated or externally examined; and

  • (d)

    for a period determined under the regulations.

• (3)

  If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1) or (2), the practitioner or practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (4)

  If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1) or (2), each principal of the practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (5)

  An offence against subsection (3) or (4) is an offence of strict liability.

258False names

• (1)

  A law practice must not knowingly receive money or record receipt of money in the practice’s trust records under a false name.

• (2)

  If a person on whose behalf trust money is received by a law practice is commonly known by more than one name, the practice must ensure the practice’s trust records record all names by which the person is known.

• (3)

  If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1) or (2), the practitioner or practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (4)

  If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1) or (2), each principal of the practice is guilty of an offence.

  Maximum penalty:          500 penalty units.

• (5)

  An offence against subsection (3) or (4) is an offence of strict liability.

259Unclaimed trust money

• (1)

  If an amount of trust money held by a law practice has become an unclaimed amount, the practice must:

  • (a)

    within one month after the amount becomes an unclaimed amount, pay the amount to the Funds Management Committee; and

  • (b)

    within 7 days after payment, give the Committee the information the Committee requires in relation to the amount and the person on whose behalf the amount was held by the practice.

• (2)

  An amount of trust money held by a law practice is an unclaimed amount if:

  • (a)

    the amount has been held by the practice for a period of at least 2 years and during that period the practice has had no knowledge of the existence or the address of the person on whose behalf the amount is held; or

  • (b)

    the person has refused to accept payment of the amount when tendered.

• (3)

  If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1), the practitioner or practice is guilty of an offence.

  Maximum penalty:          10 penalty units.

• (4)

  If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1), each principal of the practice is guilty of an offence.

  Maximum penalty:          10 penalty units.

• (5)

  On payment of the amount to the Committee under subsection (1), the practice is relieved from any further liability in relation to the unclaimed amount.

260When Funds Management Committee may pay unclaimed

• (1)

  A person who claims to be entitled to an amount paid to the Funds Management Committee under section 259(1) may apply to the Committee for payment of the amount.

• (2)

  Also, the Committee may, with the written approval of the Statutory Supervisor, use any unclaimed amount to find any person entitled to it.

• (3)

  Payment of an unclaimed amount to a person who has satisfied the Committee as to the person’s entitlement to it:

  • (a)

    discharges the Territory and the Committee from any liability in relation to the amount; and

  • (b)

    does not discharge the person from any liability to another person who establishes a right to the amount.

• (4)

  The Committee may require any person to give information the person has, or can obtain, about:

  • (a)

    the entitlement of another person to an unclaimed amount paid to the Committee under this section; and

  • (b)

    attempts made to locate the other person.

• (5)

  The person is guilty of an offence if the person:

  • (a)

    contravenes the requirement; or

  • (b)

    in purported compliance with the requirement, gives information to the Committee knowing the information:

    • (i)

      is misleading in a material particular; or

    • (ii)

      omits anything without which the information is misleading in a material particular.

  Maximum penalty:          20 penalty units.

• (6)

  If the Committee refuses an application made under subsection (1), the Committee must give the applicant an information notice for the decision.

261Appeal against decision to refuse claim for unclaimed amount

• (1)

  A person who is dissatisfied with a decision of the Funds Management Committee to refuse the person’s application under section 260(1) may appeal to the Supreme Court against the decision.

• (2)

  The appeal must be started by filing notice of appeal within 28 days after receiving the information notice.

• (3)

  The notice of appeal must state fully the grounds of appeal.

• (4)

  If the Court is satisfied the person is entitled to the amount claimed or part of it, it must make an order declaring the person to be so entitled.

• (5)

  On receipt by the Committee of an office copy of an order under subsection (4), the Committee must pay the person the amount specified in the order out of the Fidelity Fund.

• (6)

  Interest is not payable on the amount paid to the person.

Division 3Investigations and external examinationsSubdivision 1Investigations262Appointment of investigators

• (1)

  The Law Society may appoint a suitably qualified person to investigate the affairs or specified affairs of a law practice.

• (2)

  The appointment may be made generally or for the law practice specified in the instrument of appointment.

• (3)

  An investigator may, with the Society’s approval, appoint an assistant.

263Investigations

• (1)

  The instrument of appointment may authorise the investigator to conduct either or both of the following:

  • (a)

    routine investigations on a regular or other basis;

  • (b)

    investigations in relation to particular allegations or suspicions regarding trust money, trust property, trust accounts or any other aspect of the affairs of a law practice.

• (2)

  The principal purposes of an investigation are:

  • (a)

    to ascertain whether the law practice has complied with or is complying with the requirements of this Part and the regulations under this Part; and

  • (b)

    to detect and prevent fraud or defalcation.

• (3)

  However, subsection (2) does not limit the scope of the investigation or the powers of the investigator.

264Application of Chapter 6

Chapter 6 applies to an investigation under this Subdivision.

265Investigator's report

As soon as practicable after completing the investigation, the investigator must give a written report of the investigation to the Law Society.

266Confidentiality by investigator

• (1)

  An investigator is guilty of an offence if the investigator:

  • (a)

    discloses information in an investigator’s report or acquired in carrying out an investigation (protected information) to someone else; or

  • (b)

    does something that discloses protected information to someone else and is reckless about whether:

    • (i)

      the information is protected information; or

    • (ii)

      doing the thing would result in the information being disclosed.

  Maximum penalty:          400 penalty units or imprisonment for 2 years.

• (2)

  Subsection (1) does not apply to the disclosure of information:

  • (a)

    to the practice person the subject of the investigation or report; or

  • (b)

    necessary for properly conducting the investigation and making the report of the investigation; or

  • (c)

    under section 634.

  267When costs of investigation are debt
• (1)

  This section applies if:

  • (a)

    an investigator specifies in a report of an investigation there is evidence that a breach of this Act has been committed or that fraud or defalcation has been committed; and

  • (b)

    the Law Society is satisfied the breach is intentional or of a substantial nature.

• (2)

  The Society may decide that the whole or part of the costs of carrying out the investigation is payable to the Society and may specify the amount payable.

• • (a)

    a trust account is kept with the ADI by a law practice or associate of a law practice; and

  • (b)

    an external intervener for the practice requests the ADI:

    • (i)

      to produce for inspection or copying by the intervener, or a nominee of the intervener, any records relating to any such accounts or money deposited in any such account; or

    • (ii)

      to give the intervener full details of any transactions relating to any such account or money; and

  • (c)

    the ADI fails to comply with the request.

  Maximum penalty:          200 penalty units.

• (3)

  An offence against subsection (1) or (2) is an offence of strict liability.

• (4)

  However, an obligation imposed by this section on an ADI does not apply unless the external intervener produces to the ADI evidence of the appointment of the intervener in relation to the law practice concerned.

• (5)

  A request under this section may be general or limited to particular kinds of accounts.

• (6)

  This section applies despite any privacy legislation or duty of confidence to the contrary.

• (7)

  An ADI or an officer or employee of an ADI is not liable to any action for any loss or damage suffered by another person as a result of producing records or providing details under this section.

610Fees, legal costs and expenses

• (1)

  An external intervener is entitled to be paid:

  • (a)

    fees by way of remuneration; and

  • (b)

    the legal costs and the expenses incurred in relation to the external intervention;

  in accordance with the instrument of appointment.

• (2)

  An account of the external intervener for fees, costs and expenses may, on the application of the Law Society, be taxed or assessed.

• (3)

  The fees, costs and expenses are payable by and recoverable from the law practice.

• (4)

  Fees, costs and expenses not paid to the external intervener by the law practice are payable from the Fidelity Fund.

• (5)

  The Society may recover any unpaid fees, costs and expenses from the law practice.

• (6)

  Fees, costs and expenses paid by or recovered from the law practice after they have been paid from the Fund must be paid to the Fund.

611Reports by external intervener

• (1)

  An external intervener must provide written reports in accordance with any reporting requirements to be observed by the intervener as specified in the instrument of appointment.

• (2)

  If the instrument of appointment does not specify any reporting requirements, an external intervener must provide:

  • (a)

    written reports as required from time to time by the Law Society; and

  • (b)

    a written report to the Society at the termination of the appointment.

• (3)

  An external intervener must also keep the Society informed of the progress of the external intervention, including reports to the Society about any significant events occurring or state of affairs existing in connection with the intervention or with any of the matters to which the intervention relates.

• (4)

  Nothing in this section affects any other reporting obligations that may exist in respect of the law practice concerned.

612Report to Law Society of disciplinary matters

• (1)

  Subsection (2) applies if an external intervener becomes aware of any matter in the course of an external intervention that the external intervener thinks may be unsatisfactory professional conduct or professional misconduct on the part of an Australian legal practitioner or Australian-registered foreign lawyer.

• (2)

  The external intervener must, unless the matter is or has already been the subject of a complaint under Chapter 4, refer the matter to the Law Society to consider whether disciplinary action should be taken against an Australian legal practitioner or Australian-registered foreign lawyer.

613Confidentiality

• (1)

  An external intervener is guilty of an offence if the external intervener:

  • (a)

    discloses information obtained as a result of the external intervener’s appointment (protected information) to someone else; or

  • (b)

    does something that discloses protected information to someone else and is reckless about whether:

    • (i)

      the information is protected information; or

    • (ii)

      doing the thing would result in the information being disclosed.

  Maximum penalty:          400 penalty units or imprisonment for 2 years.

• (2)

  Subsection (1) does not apply to the disclosure of information:

  • (a)

    necessary for exercising or performing the external intervener’s powers or functions; or

  • (b)

    to any court, tribunal or other person acting judicially; or

  • (c)

    to a regulatory authority of any jurisdiction; or

  • (d)

    to any officer of or Australian legal practitioner instructed by:

    • (i)

      a regulatory authority of any jurisdiction; or

    • (ii)

      the Commonwealth or a State or Territory of the Commonwealth; or

    • (iii)

      an authority of the Commonwealth or of a State or Territory of the Commonwealth;

  in relation to any proceedings, inquiry or other matter pending or contemplated arising out of the investigation or examination; or

  • (e)

    a member of the police force of any jurisdiction if the Law Society or external intervener believes on reasonable grounds the information relates to an offence that may have been committed by the law practice concerned or by an associate of the law practice; or

  • (f)

    the law practice concerned or a principal of the law practice or, if the practice is an incorporated legal practice, a shareholder in the practice; or

  • (g)

    a client or former client of the law practice concerned if the information relates to the client or former client; or

  • (h)

    another external intervener appointed in relation to the law practice or any Australian legal practitioner or accountant employed by that other external intervener; or

  • (i)

    any other external examiner carrying out an external examination of the trust records of the law practice concerned.

  614Provisions relating to requirements under this Part
• (1)

  This section applies to a requirement imposed on a person under this Chapter to give an external intervener access to documents or information.

• (2)

  The validity of the requirement is not affected, and the person is not excused from compliance with the requirement, on the ground that a law practice or Australian legal practitioner has a lien over a particular document or class of documents.

• (3)

  The external intervener imposing the requirement may:

  • (a)

    inspect any document provided pursuant to the requirement; and

  • (b)

    make copies of the document or any part of the document; and

  • (c)

    retain the document for a period the intervener thinks necessary for the external intervention in relation to which it was produced.

• (4)

  The person is not subject to any liability, claim or demand merely because of compliance with the requirement.

• (5)

  A contravention of the requirement by an Australian lawyer is capable of constituting unsatisfactory professional conduct or professional misconduct.

• (6)

  The Law Society:

  • (a)

    may on its own initiative; or

  • (b)

    must if directed to do so by the Statutory Supervisor;

  suspend a local practitioner’s practising certificate while the practitioner’s contravention of the requirement continues.

615Obstruction of external intervener

• (1)

  A person must not obstruct an external intervener exercising a power under this Act.

  Maximum penalty:          100 penalty units or imprisonment for 6 months.

• (2)

  It is a defence to a prosecution for an offence against subsection (1) if the person has a reasonable excuse.

• (3)

  In this section:

  obstruct includes hinder, delay and resist.

616Protection from liability

No liability attaches to the Law Society or a person appointed as an external intervener for a law practice for any act or omission by the intervener done in good faith and in the exercise or performance, or purported exercise or performance, of the intervener’s powers or duties under this Act.

Chapter 6Investigatory powersPart 6.1Preliminary matters 617Purpose of Chapter

The purpose of this Chapter is to provide powers that are exercisable in connection with:

• (a)

  the conduct of audits under Part 2.6, Division 2 in relation to incorporated legal practices (ILP compliance audits); and

• (b)

  the investigation of the affairs of law practices under Part 3.1, Division 3, Subdivision 1 (trust account investigations); and

• (c)

  the external examination of the trust records of law practices under Part 3.1, Division 3, Subdivision 2 (trust account examinations); and

• (d)

  the investigation of complaints under Chapter 4 (complaint investigations).

618Definitions

In this Chapter:

complaint investigation, see section 617(d).

ILP compliance audit, see section 617(a).

investigator means:

• (a)

  in relation to an audit under Part 2.6, Division 2 – the Law Society or a person authorised by the Society in connection with the audit; or

• (b)

  an investigator under Part 3.1, Division 3, Subdivision 1; or

• (c)

  an external examiner under Part 3.1, Division 3, Subdivision 2; or

• (d)

  an investigator under Chapter 4.

trust account examination, see section 617(c).

trust account investigation, see section 617(b).

Part 6.2Requirements relating to documents, information and other assistance 619Application of Part

This Part applies to:

• (a)

  trust account investigations; and

• (b)

  trust account examinations; and

• (c)

  complaint investigations; and

• (d)

  ILP compliance audits.

620Requirements for trust account investigations and examinations and ILP compliance audits

• (1)

  For carrying out a trust account investigation, trust account examination or ILP compliance audit in relation to a law practice, an investigator may, on production of evidence of the investigator’s appointment, require the practice or an associate or former associate of the practice or any other person (including, for example, an ADI, auditor or liquidator) who has or has had control of documents relating to the affairs of the practice to give the investigator either or both of the following:

  • (a)

    access to the documents relating to the affairs of the practice the investigator reasonably requires;

  • (b)

    information relating to the affairs of the practice the investigator reasonably requires (verified by statutory declaration if the requirement so specifies).

• (2)

  A person who is subject to a requirement under subsection (1) must comply with the requirement.

  Maximum penalty:          100 penalty units or imprisonment for 6 months.

• (3)

  A person who is subject to a requirement under subsection (1) is not entitled to charge the investigator for giving the access or information.

621Requirements for investigations under Chapter 4

• (1)

  For carrying out a complaint investigation in relation to an Australian lawyer, an investigator may, by notice served on the lawyer, require the lawyer to do any one or more of the following:

  • (a)

    to produce, at or before a specified time and at a specified place, any specified document (or a copy of the document);

  • (b)

    to produce, at a specified time and specified place, any specified document (or a copy of the document);

  • (c)

    to provide written information on or before a specified date (verified by statutory declaration if the requirement so states);

  • (d)

    to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner.

• (2)

  For carrying out a complaint investigation in relation to an Australian lawyer, the investigator may, on production of evidence of the investigator’s appointment, require an associate or former associate of a law practice of which the lawyer is or was an associate or any other person (including, for example, an ADI, auditor or liquidator but not including the lawyer) who has or has had control of documents relating to the affairs of the lawyer to give the investigator either or both of the following:

  • (a)

    access to the documents relating to the affairs of the lawyer the investigator reasonably requires;

  • (b)

    information relating to the affairs of the lawyer the investigator reasonably requires (verified by statutory declaration if the requirement so states).

• (3)

  A person who is subject to a requirement under subsection (1) or (2) must comply with the requirement.

  Maximum penalty:          100 penalty units or imprisonment for 6 months.

• (4)

  A requirement imposed on a person under subsection (1) or (2) must be given by written notice to the person and must specify a reasonable time for compliance.

622Provisions relating to requirements under this Part

• (1)

  This section applies to a requirement imposed on a person under this Part.

• (2)

  The validity of the requirement is not affected, and the person is not excused from compliance with the requirement, on the ground that a law practice or Australian legal practitioner has a lien over a particular document or class of documents.

• (3)

  The investigator imposing the requirement may:

  • (a)

    inspect any document provided pursuant to the requirement; and

  • (b)

    make copies of the document or any part of the document; and

  • (c)

    retain the document for a period the investigator thinks necessary for the investigation in relation to which it was produced.

• (4)

  The person is not subject to any liability, claim or demand merely because of compliance with the requirement.

• (5)

  The Law Society:

  • (a)

    may on its own initiative; or

  • (b)

    must, if directed by the Statutory Supervisor;

  suspend a local practitioner’s practising certificate while the practitioner’s contravention of the requirement continues.

• (6)

  If a document:

  • (a)

    is not in writing; or

  • (b)

    is not written in the English language; or

  • (c)

    is not decipherable on sight;

  a requirement under this Part to provide access to the document is not complied with unless access provided to a statement, written in the English language and decipherable on sight, that contains all the information in the document.

• (7)

  The Society may retain any copy of a document or part of a document made by an investigator under this Part and provided to the Society under this Part.

Part 6.3Entry and search of premises 623Application of Part

• (1)

  This Part applies to:

  • (a)

    trust account investigations; and

  • (b)

    complaint investigations.

• (2)

  However, this Part does not apply to:

  • (a)

    trust account examinations; or

  • (b)

    ILP compliance audits.

  624Investigator's power to enter premises
• (1)

  For carrying out an investigation, an investigator may enter and remain on premises to exercise the powers in section 626.

• (2)

  For a trust account investigation:

  • (a)

    the investigator may enter premises, other than residential premises, without the need for consent or a search warrant; and

  • (b)

    the investigator may only enter residential premises as follows:

    • (i)

      the investigator may enter the premises at any time with the consent of the occupier;

    • (ii)

      the investigator may enter the premises under the authority of a search warrant issued under this Part;

    • (iii)

      the investigator may enter the premises at any time without the consent of the occupier and without a warrant, but only if the investigator believes, on reasonable grounds, that it is urgently necessary to do so in order to prevent the destruction of or interference with relevant material.

• (3)

  For a complaint investigation, the investigator may only enter premises as follows:

  • (a)

    the investigator may enter the premises at any time with the consent of the occupier;

  • (b)

    the investigator may enter the premises under the authority of a search warrant issued under this Part.

• (4)

  The investigator must not exercise the power in subsection (2)(b)(iii) unless the Law Society in the particular case has authorised the investigator (orally or in writing) to do so.

• (5)

  An investigator is guilty of an offence if:

  • (a)

    when exercising a power under this section, a person apparently in charge of the premises or another person on the premises asks the investigator to produce evidence of the investigator’s appointment; and

  • (b)

    the investigator does not produce such evidence.

  Maximum penalty for subsection (5):  20 penalty units.

625Search warrants

• (1)

  For carrying out an investigation, an investigator may apply to a Local Court Judge for a search warrant.

• (2)

  The Judge may issue a search warrant to an investigator only if satisfied there are reasonable grounds to suspect that relevant material is located at the premises.

• (3)

  A search warrant authorises an investigator:

  • (a)

    to enter the premises specified in the warrant at the time or within the period specified in the warrant; and

  • (b)

    to exercise the powers in section 626.

• (4)

  A search warrant may be executed by the investigator to whom it is issued or by another investigator.

• (5)

  An investigator is guilty of an offence if:

  • (a)

    when executing a warrant, a person apparently in charge of the premises or another person on the premises asks the investigator to produce the warrant; and

  • (b)

    the investigator does not produce the warrant.

  Maximum penalty:          20 penalty units.

626Powers of investigator while on premises

• (1)

  An investigator who enters premises under this Part may exercise any or all of the following powers:

  • (a)

    search the premises and examine anything on the premises;

  • (b)

    search for any information, document or other material relating to the matter to which the investigation relates;

  • (c)

    operate equipment or facilities on the premises for a purpose relevant to the investigation;

  • (d)

    take possession of any relevant material and retain it for as long as may be necessary to examine it to determine its evidentiary value;

  • (e)

    make copies of any relevant material or any part of any relevant material;

  • (f)

    seize and take away any relevant material or any part of any relevant material;

  • (g)

    use (free of charge) photocopying equipment on the premises to copy any relevant material;

  • (h)

    in relation to any computer or other equipment that the investigator suspects on reasonable grounds may contain any relevant material:

    • (i)

      inspect and gain access to a computer or equipment; or

    • (ii)

      download or otherwise obtain any documents or information; or

    • (iii)

      make copies of any documents or information held in it; or

    • (iv)

      seize and take away any computer or equipment or any part of it;

  • (i)

    if any relevant material found on the premises cannot be conveniently removed, secure it against interference;

  • (j)

    request any person who is on the premises to do any of the following:

    • (i)

      to state the person’s full name, date of birth and address;

    • (ii)

      to answer (orally or in writing) questions asked by the investigator relevant to the investigation;

    • (iii)

      to produce relevant material;

    • (iv)

      to operate equipment or facilities on the premises for a purpose relevant to the investigation;

    • (v)

      to provide access (free of charge) to photocopying equipment on the premises the investigator reasonably requires to enable the copying of any relevant material;

    • (vi)

      to give other assistance the investigator reasonably requires to carry out the investigation;

  • (k)

    do anything else reasonably necessary to obtain information or evidence for the investigation.

• (2)

  Any documents, information or anything else obtained by the investigator may be used for the investigation.

• (3)

  If the investigator takes anything from the premises, the investigator must issue a receipt in a form approved by the Law Society and:

  • (a)

    if the occupier or a person apparently responsible to the occupier is present at or near the premises, give the receipt to the occupier; or

  • (b)

    otherwise, leave it at the premises in an envelope addressed to the occupier.

• (4)

  An investigator may be accompanied by any assistants the investigator requires, including persons with accounting expertise and persons to assist in finding and gaining access to electronically stored information.

Part 6.4Additional powers in relation to incorporated legal practices 627Application of Part

• (1)

  This Part applies to the following investigations and audits conducted in relation to incorporated legal practices:

  • (a)

    trust account investigations;

  • (b)

    complaint investigations;

  • (c)

    ILP compliance audits.

• (2)

  This Part is additional to the other provisions of this Chapter.

628Investigative powers relating to investigations and audits

An investigator conducting an investigation or audit to which this Part applies may exercise the powers under this Part.

629Examination of persons

• (1)

  The investigator has and may exercise the same powers as those conferred on the Australian Securities and Investments Commission by Part 3, Division 2 of the Australian Securities and Investments Commission Act 2001 (Cth).

• (2)

  Part 3, Division 2 of the Australian Securities and Investments Commission Act 2001 (Cth) applies (with the necessary modifications) to the exercise of those powers with the following modifications (and any other necessary modifications):

  • (a)

    a reference to the Australian Securities and Investments Commission (however expressed) is taken to be a reference to the Law Society or investigator;

  • (b)

    a reference to a matter that is being or is to be investigated under Part 3, Division 1 of that Act is taken to be a reference to a matter that is being or is to be investigated, examined or audited by the investigator;

  • (c)

    a reference in section 19 of that Act to a person is taken to be a reference to an Australian legal practitioner or an incorporated legal practice;

  • (d)

    a reference to a prescribed form is taken to be a reference to a form approved by the Society.

• (3)

  Sections 22(2) and (3), 25(2) and (2A), 26 and 27 of the Australian Securities and Investments Commission Act 2001 (Cth) do not apply in relation to the exercise of the powers conferred by this section.

630Inspection of books

• (1)

  The investigator has and may exercise the same powers as those conferred on the Australian Securities and Investments Commission by sections 30(1), 34 and 37 to 39 of the Australian Securities and Investments Commission Act 2001 (Cth).

• (2)

  Those provisions apply to the exercise of those powers with the following modifications (and any other necessary modifications):

  • (a)

    a reference to the Australian Securities and Investments Commission (however expressed) is taken to be a reference to the Law Society or investigator;

  • (b)

    a reference to a body corporate (including a body corporate that is not an exempt public authority) is taken to be a reference to an incorporated legal practice;

  • (c)

    a reference to an eligible person in relation to an incorporated legal practice is taken to be a reference to an officer or employee of the incorporated legal practice;

  • (d)

    a reference to a member or staff member is taken to be a reference to the Society or a person authorised by the Society who is an officer or employee of the Society;

  • (e)

    a reference in section 37 of that Act to a proceeding is taken to be a reference to an investigation, examination or audit to which this Part applies.

  631Power to hold hearings
• (1)

  The Law Society or investigator may hold hearings for an investigation, examination or audit to which this Part applies.

• (2)

  Sections 52, 56(1), 58, 59(1), (2), (5), (6) and (8) and 60 (paragraph (b) excepted) of the Australian Securities and Investments Commission Act 2001 (Cth) apply to a hearing with the following modifications (and any other modifications):

  • (a)

    a reference to Australian Securities and Investments Commission (however expressed) is taken to be a reference to the Society or the investigator;

  • (b)

    a reference to a member or staff member is taken to be a reference to the Society or a person authorised by the Society who is an officer or employee of the Society;

  • (c)

    a reference to a prescribed form is taken to be a reference to a form approved by the Society.

  Part 6.5Miscellaneous matters    

632Obstruction of investigator

• (1)

  A person must not obstruct an investigator exercising a power under this Act.

  Maximum penalty:          100 penalty units or imprisonment for 6 months.

• (2)

  A person requested to do anything under section 626(1)(j) must comply with the request.

  Maximum penalty:          100 penalty units or imprisonment for 6 months.

• (3)

  It is a defence to a prosecution for an offence against subsection (1) or (2) if the practitioner, practice or principal has a reasonable excuse.

• (4)

  In this section:

  obstruct includes hinder, delay and resist.

633Obligation of Australian lawyers

• (1)

  The duties imposed on an Australian lawyer by this section are additional to obligations imposed under other provisions of this Chapter, whether or not the lawyer is the subject of the investigation, examination or audit concerned.

• (2)

  An Australian lawyer must not mislead an investigator or the Law Society in the exercise of:

  • (a)

    any power or function under this Chapter; or

  • (b)

    any power or function under a provision of a corresponding law that corresponds to this Chapter.

• (3)

  An Australian lawyer who is subject to a requirement under section 621, or under a provision of a corresponding law that correspond to that section, must not, without reasonable excuse, fail to comply with the requirement.

634Permitted disclosure of confidential information

• (1)

  The Law Society or an investigator may disclose information obtained in the course of a trust account investigation, trust account examination, complaint investigation or ILP compliance audit to any of the following:

  • (a)

    any court, tribunal or other person acting judicially;

  • (b)

    the Society or any other body regulating legal practitioners in any jurisdiction;

  • (c)

    any officer of, or Australian legal practitioner instructed by:

    • (i)

      the Society or any other body regulating legal practitioners in any jurisdiction; or

    • (ii)

      the Commonwealth or a State or Territory of the Commonwealth; or

    • (iii)

      an authority of the Commonwealth or of a State or Territory of the Commonwealth;

  in relation to any proceedings, inquiry or other matter pending or contemplated arising out of the investigation, examination or audit;

  • (d)

    an investigative or prosecuting authority established by or under legislation (for example, the Australian Securities and Investments Commission);

  • (e)

    a police officer if the Society or investigator is reasonably satisfied the information relates to an offence that may have been committed by:

    • (i)

      if a law practice is the subject of the investigation, examination or audit – the law practice or an associate or former associate of the law practice; or

    • (ii)

      if an Australian lawyer is the subject of the investigation, examination or audit – the lawyer or an associate or former associate of the law practice of which the lawyer is or was an associate;

  • (f)

    if the subject of the investigation, examination or audit is or was:

    • (i)

      a law practice – a principal of the law practice; or

    • (ii)

      an incorporated legal practice – a director or shareholder in the practice; or

    • (iii)

      an Australian lawyer – the lawyer or a principal of the law practice of which the lawyer is or was an associate;

  • (g)

    if the subject of the investigation, examination or audit is or was:

    • (i)

      a law practice – a client or former client of the practice; or

    • (ii)

      an Australian lawyer – a client or former client of the law practice of which the lawyer is or was an associate;

  but only if the information relates to the client or former client;

  • (h)

    if the subject of the investigation, examination or audit is or was:

    • (i)

      a law practice – a supervisor, manager or receiver appointed in relation to the law practice; or

    • (ii)

      an Australian lawyer – a supervisor, manager or receiver appointed in relation to the law practice of which the lawyer is or was an associate;

  or an Australian legal practitioner or accountant employed by the supervisor, manager or receiver;

  • (i)

    an investigator carrying out another investigation, examination or audit in relation to the law practice or Australian lawyer who is or was the subject of the investigation, examination or audit.

• (2)

  No liability (including liability in defamation) is incurred by a protected person in relation to anything done or omitted to be done in good faith for the purpose of disclosing information under this section.

• (3)

  In this section:

  protected person means:

  • (a)

    the Law Society or a member of the Council;

  • (b)

    an investigator; or

  • (c)

    a person acting at the direction of any person or entity mentioned in this definition.

  Chapter 7Regulatory authorities

Part 7.1Law Society Northern TerritoryDivision 1Establishment, status and constitution of Law Society 635Establishment

• (1)

  There is established the Law Society Northern Territory.

• (2)

  The Society:

  • (a)

    is a body corporate with perpetual succession; and

  • (b)

    has a common seal; and

  • (c)

    is capable, in its corporate name, of acquiring, holding and disposing of real and personal property; and

  • (d)

    is capable, in its corporate name, of suing and being sued.

  636Status

  The Law Society does not represent the Territory.

637Members constituting Law Society

The Law Society consists of the persons who:

• (a)

  are enrolled on an Australian roll; and

• (b)

  hold a local practising certificate or interstate practising certificate or, under the Law Officers Act 1978, are taken to hold a local practising certificate; and

• (c)

  under its constitution, are admitted and continue as members.

Division 2Management of Law Society 638Council of Law Society

• (1)

  There is established the Council of the Law Society Northern Territory.

• (2)

  The Council consists of the persons elected as members under the Society’s constitution.

639Council's function

• (1)

  The Council’s function is to manage the Law Society’s affairs.

• (2)

  Without limiting subsection (1), the Council is responsible for the way in which the Society exercises its powers and performs its functions.

640Chief executive officer

• (1)

  There is to be a chief executive officer of the Law Society.

• (2)

  The Council must appoint a person as the chief executive officer.

641Chief executive officer's function

The chief executive officer is, subject to the directions of the Council, responsible for the day-to-day management of the Law Society’s affairs.

Division 3Financial matters 642Financial management

• (1)

  The Law Society may manage its financial affairs in the way it considers appropriate.

• (2)

  Subsection (1) has effect subject to:

  • (a)

    requirements of the regulations; and

  • (b)

    Part 5 of the Associations Act 2003 as applied by section 645(1).

  643Budget

  The Council must in each financial year:

  • (a)

    adopt for the next financial year a budget for all funds of the Law Society; and

  • (b)

    approve all amendments to the budget.

  Division 4General matters  

644Constitution

• (1)

  The Law Society must have a written constitution.

• (2)

  The constitution must provide for the following matters:

  • (a)

    classes of membership;

  • (b)

    management of the Society’s affairs by the Council;

  • (c)

    election of members of the Council;

  • (d)

    the powers, functions and proceedings of the Council;

  • (e)

    membership fees and levies;

  • (f)

    the funds and accounts of the Council.

• (3)

  The constitution may also provide for other matters the Council considers desirable.

• (4)

  Subsections (2) and (3) have effect subject to this Part.

• (5)

  The Society must file a copy of the constitution with the Commissioner for Consumer Affairs within one month after the commencement date.

645Relationship with

• (1)

  The following provisions of the Associations Act 2003 apply (with the necessary modifications and modifications prescribed by the regulations) to the Law Society as if it were an incorporated association under that Act:

  • (a)

    Parts 2, 4 (other than sections 27, 29 and 30), 5, 10 and 12 (other than section 110);

  • (b)

    sections 23 to 25;

  • (c)

    definitions necessary to give effect to the provisions mentioned in paragraphs (a) and (b);

  • (d)

    regulations made for the provisions mentioned in paragraphs (a), (b) and (c).

• (2)

  Without limiting subsection (1), a reference in that Act to the public officer of an incorporated association is taken to be a reference to the chief executive officer of the Society.

646Relationship with other Acts

• (1)

  For the Information Act 2002, the Law Society is a public sector organisation.

• (2)

  To avoid doubt, a reference in that Act to a public sector organisation includes a reference to the Council.

• (3)

  For the Ombudsman Act 2009:

  • (a)

    the Society is a public authority; and

  • (b)

    the Attorney-General is the responsible Minister for the Society; and

  • (c)

    the chief executive officer of the Society is its principal officer.

  647Delegations
• (1)

  The Law Society may delegate any of its powers and functions to the Council or an employee of the Society.

• (2)

  The Council may delegate any of its powers and functions to an employee of the Society.

• (3)

  The chief executive officer may delegate any of the chief executive officer’s powers and functions to an employee of the Society.

• (4)

  Subsection (3) has effect subject to the Council’s directions.

• (5)

  A delegation under this section must be in writing.

648Annual report

• (1)

  The Law Society must prepare a report on its operations under this Act for each financial year.

• (2)

  Within 3 months after the end of the year to which the report relates, the Society must:

  • (a)

    give a copy of the report to the Attorney-General; and

  • (b)

    ensure a copy of the report is available for inspection by the public:

    • (i)

      at the Society’s office during office hours; and

    • (ii)

      on the Internet and in other ways the Society decides.

    Part 7.2Admission board    
  649Definitions

  In this Part:

  appointed member, of the Admission Board, see section 651(1)(b).

  chairperson, of the Admission Board, means the member who, under section 651(4), is chairperson of the Board.

650Establishment

There is established the Legal Practitioners Admission Board of the Northern Territory.

651Membership

• (1)

  The Admission Board consists of:

  • (a)

    an Associate Judge; and

  • (b)

    not more than 6 legal practitioners appointed by the Chief Justice (each an appointed member).

• (2)

  At least 2 of the appointed members must be a local lawyer.

• (3)

  One of the appointed members must be appointed on the nomination of the Attorney-General.

• (4)

  The Associate Judge is the chairperson of the Board.

652Duration of appointment

• (1)

  An appointed member of the Admission Board holds office for the period:

  • (a)

    starting on the date of appointment or, if the instrument of appointment states a later date, the later date; and

  • (b)

    ending on the next following 30 September.

• (2)

  An appointed member of the Board is eligible for re-appointment.

653Removal from office of appointed member

• (1)

  The Supreme Court may remove an appointed member of the Admission Board from office on any of the grounds mentioned in subsection (2) on its own initiative or on application of any of the following:

  • (a)

    the chairperson of the Board;

  • (b)

    the Law Society;

  • (c)

    the Statutory Supervisor.

• (2)

  The grounds are:

  • (a)

    the member’s inability, inefficiency, misbehaviour or physical or mental incapacity; or

  • (b)

    the member becomes an insolvent under administration; or

  • (c)

    the member ceases to be a legal practitioner; or

  • (d)

    the member ceases to hold the qualification for which the member was appointed under section 651 and there is no other member of the Board holding that qualification; or

  • (e)

    the member is absent, except on leave granted by the Board, from 3 consecutive meetings of the Board.

  654Secretary

  The Chief Justice may appoint a person to be secretary to the Admission Board.

655Meetings

• (1)

  At a meeting of the Admission Board, 3 members constitute a quorum.

• (2)

  The Associate Judge presides at all meetings at which the Associate Judge is present.

• (3)

  In the absence of the Associate Judge from a meeting, the members present at the meeting must elect a member to preside at the meeting.

• (4)

  The Board must hold meetings at the times and places the Associate Judge directs or the Board decides.

• (5)

  The Board must keep records of its meetings.

656Delegations

• (1)

  The Admission Board may delegate any of its powers and functions to:

  • (a)

    the chairperson; or

  • (b)

    the secretary; or

  • (c)

    a committee of the Board comprising 2 or members.

• (2)

  The delegation must be in writing.

657Protection from liability

• (1)

  This section applies to a person who is or has been a member of the Admission Board.

• (2)

  The person is not civilly or criminally liable for an act done or omitted to be done in good faith in the exercise or purported exercise of a power, or the performance or purported performance of a function, under this Act.

• (3)

  Subsection (2) does not affect any liability the Territory would, apart from that subsection, have for the act or omission.

Part 7.3Legal Practitioners Funds Management Committee 658Definitions

In this Part:

appointed member, of the Funds Management Committee, means a member appointed under section 661(1)(c), (d) or (e).

chairperson, of the Funds Management Committee, means the member who, under section 661(2), is chairperson of the Committee.

659Establishment

• (1)

  There is established the Legal Practitioners Funds Management Committee.

• (2)

  The Funds Management Committee:

  • (a)

    is a body corporate with perpetual succession; and

  • (b)

    has a common seal; and

  • (c)

    is capable, in its corporate name, of acquiring, holding and disposing of real and personal property; and

  • (d)

    is capable, in its corporate name, of suing and being sued.

  660Status
• (1)

  The Funds Management Committee represents the Territory.

• (2)

  The Committee is not an Agency or part of an Agency.

661Membership

• (1)

  The Funds Management Committee consists of:

  • (a)

    the chief executive officer of the Law Society; and

  • (b)

    the person who, under the Society’s constitution, holds or acts in the office of President of the Council of the Society or a nominee of the President; and

  • (c)

    a person appointed by the Chief Executive Officer, as defined in the Public Sector Employment and Management Act 1993, of the Agency in which this Act is administered; and

  • (d)

    a person appointed by the Chief Executive Officer, as defined in the Public Sector Employment and Management Act 1993, of the Agency in which the Financial Management Act 1995 is administered; and

  • (e)

    a person appointed by the Attorney-General as representing the interests of consumers of legal services.

• (2)

  The member mentioned in subsection (1)(c) is the chairperson of the Committee.

662Duration of appointment

• (1)

  An appointed member of the Funds Management Committee holds office for 2 years starting on the date of appointment or, if the instrument of appointment states a later date, the later date.

• (2)

  An appointed member of the Board is eligible for re-appointment.

663Resignation and removal from office of appointed member

• (1)

  An appointed member of the Funds Management Committee may resign office by writing signed by or for the member and given to the Attorney-General.

• (2)

  The Attorney-General may at any time terminate the appointment of an appointed member of the Committee.

• (3)

  Subsection (2) does not limit the power to terminate the appointment of an appointed member of the Committee mentioned in section 661 (1)(c) or (d) by the Chief Executive Officer who appointed the member.

  Note for subsection (3)

  Under section 44(1) of the Interpretation Act 1978, the power to appoint a person to an office or position includes the power to terminate the appointment.

664Meetings

• (1)

  At a meeting of the Funds Management Committee, 3 members constitute a quorum.

• (2)

  The chairperson presides at all meetings at which the chairperson is present.

• (3)

  In the absence of the chairperson from a meeting, the members present at the meeting must elect a member to preside at the meeting.

• (4)

  The Committee must hold meetings at the times and places the chairperson directs or the Committee decides.

• (5)

  However, the Committee must meet at least once every 3 months.

• (6)

  The Committee must keep records of its meetings.

665Financial management

• (1)

  The Funds Management Committee may manage its financial affairs in the way it considers appropriate.

• (2)

  Subsection (1) has effect subject to:

  • (a)

    section 386; and

  • (b)

    requirements of the regulations.

• (3)

  Without limiting subsection (2), the regulations may provide for the following:

  • (a)

    the keeping of accounting records and preparation of statements of account;

  • (b)

    the audit of the Fidelity Fund;

  • (c)

    the qualifications of the auditor;

  • (d)

    the auditor’s powers and functions.

  666Delegations
• (1)

  The Funds Management Committee may delegate any of its powers and functions to any person.

• (2)

  The delegation must be in writing.

667Protection from liability

• (1)

  This section applies to a person who is or has been a member of the Funds Management Committee.

• (2)

  The person is not civilly or criminally liable for an act done or omitted to be done in good faith in the exercise or purported exercise of a power, or the performance or purported performance of a function, under this Act.

• (3)

  In addition, the person is not civilly or criminally liable for an act done or omitted to be done by the Committee in the exercise or purported exercise of a power, or the performance or purported performance of a function, under this Act.

• (4)

  Subsections (2) and (3) do not affect any liability the Territory would, apart from that subsection, have for the act or omission.

Part 7.4Legal Practitioners Disciplinary Tribunal 668Definition

In this Part:

chairperson, of the Disciplinary Tribunal, means the member who, under section 671(1), is chairperson of the Tribunal.

669Establishment

There is established the Legal Practitioners Disciplinary Tribunal.

670Membership

• (1)

  The Disciplinary Tribunal consists of the following members:

  • (a)

    a person who:

    • (i)

      is a Supreme Court Judge or Local Court Judge or a retired Supreme Court Judge or retired Local Court Judge; or

    • (ii)

      has practised as a legal practitioner in Australia or New Zealand for at least 7 years and who is entitled to be issued a local practising certificate;

  • (b)

    3 persons who are not Australian lawyers;

  • (c)

    5 Australian lawyers nominated by the Law Society (of whom at least 2 must, at the time of their nomination, be local counsel);

  • (d)

    3 Australian lawyers who are not nominated by the Society.

• (2)

  The Attorney-General must appoint the members of the Tribunal.

• (3)

  In this section:

  local counsel means a legal practitioner who holds a current local practising certificate to practise as or in the manner of a barrister.

671Chairperson and deputy chairperson

• (1)

  The member mentioned in section 670(1)(a) is the chairperson of the Disciplinary Tribunal.

• (2)

  The Attorney-General must appoint one of the members mentioned in section 670(1)(c) or (d) to be the deputy chairperson of the Tribunal.

• (3)

  The deputy chairperson may exercise the powers and perform the functions of the chairperson if the chairperson is absent or unable for another reason to exercise powers or perform functions.

672Duration of appointment

• (1)

  A member of the Disciplinary Tribunal holds office for 3 years or the lesser period specified in the instrument of appointment.

• (2)

  A member of the Tribunal is eligible for re-appointment.

673Resignation and removal of member

• (1)

  A member of the Disciplinary Tribunal may resign office by signed writing given to the Attorney-General.

• (2)

  The Attorney-General may at any time terminate the appointment of a member of the Tribunal.

674Constitution of Disciplinary Tribunal for hearings

• (1)

  As soon as practicable after proceedings for an appeal under section 506 or a disciplinary application are started under Chapter 4, the chairperson must select at least 3 but not more than 5 members to constitute the Disciplinary Tribunal to hear and decide the proceedings.

• (2)

  The members selected to constitute the Tribunal:

  • (a)

    may include the chairperson; and

  • (b)

    must include:

    • (i)

      a member mentioned in section 670(1)(b); and

    • (ii)

      a member mentioned in section 670(1)(c) or (d).

    675Presiding member
• (1)

  The presiding member for a hearing of the Disciplinary Tribunal is:

  • (a)

    if the chairperson is a member of the Tribunal – the chairperson; or

  • (b)

    otherwise – the member appointed by the chairperson.

• (2)

  However, if the member appointed under subsection (1)(b) is not present at any proceedings, the members present must elect one of their number who is a legal practitioner to preside at the proceedings.

676Change in composition

• (1)

  If one of the members (other than the presiding member) constituting the Disciplinary Tribunal for a hearing vacates office or becomes incapable of sitting for any reason before the hearing is completed or a decision has been made for the hearing, the hearing may be continued and completed by the remaining members.

• (2)

  If the presiding member or more than one member vacates office or becomes incapable of sitting before the Tribunal has completed the hearing or made a decision for the hearing, the hearing is terminated and a new hearing may be started before the Tribunal constituted under section 674.

• (3)

  In a new hearing the Tribunal may have regard to the record of the proceeding before the Tribunal as previously constituted, including the record of any evidence taken in the proceeding.

677Protection from liability

• (1)

  This section applies to a person who is or has been a member of the Disciplinary Tribunal.

• (2)

  The person is not civilly or criminally liable for an act done or omitted to be done in good faith in the exercise or purported exercise of a power, or the performance or purported performance of a function, under this Act.

• (3)

  Subsection (2) does not affect any liability the Territory would, apart from that subsection, have for the act or omission.

677APractice and procedure

• (1)

  The chairperson, after consulting with the other members of the Disciplinary Tribunal, may make rules for the practice and procedure of the Tribunal.

• (2)

  The rules may provide for the giving of a notice to a person to appear at a hearing of the Tribunal to give evidence or produce a document or other thing.

• (3)

  The chairperson may issue practice directions relating to the practice and procedure of the Tribunal.

• (4)

  The Chief Executive Officer of the Agency administering this Act may appoint a person to be the registrar of the Tribunal.

Part 7.5Statutory Supervisor 678Office established

• (1)

  There is to be a Statutory Supervisor.

• (2)

  The Solicitor-General holds office as the Supervisor unless an appointment is made under section 679.

679Appointment

• (1)

  The Attorney-General may, by Gazette notice, appoint a person to be the Statutory Supervisor.

• (2)

  If the person appointed to be the Supervisor is not a public sector employee, the Supervisor holds office for the period (not exceeding 5 years) specified in the instrument of appointment and is eligible for re-appointment.

680Resignation

The Statutory Supervisor may resign office by written notice given to the Attorney-General.

681Delegations

• (1)

  The Statutory Supervisor may delegate any of the Supervisor’s powers and functions to any person or body.

• (2)

  The delegation must be in writing.

682Protection from liability

• (1)

  This section applies to a person who is or has been the Statutory Supervisor.

• (2)

  The person is not civilly or criminally liable for an act done or omitted to be done in good faith in the exercise or purported exercise of a power, or the performance or purported performance of a function, under this Act.

• (3)

  Subsection (2) does not affect any liability the Territory would, apart from that subsection, have for the act or omission.

Part 7.6Application of Corporations Act 683Excluded matters for Corporations Act

• (1)

  This section applies to the following bodies:

  • (a)

    the Law Society;

  • (b)

    the Funds Management Committee.

• (2)

  The bodies, their employees and the members of the Committee are declared to be excluded matters for section 5F of the Corporations Act in relation to:

  • (a)

    Chapter 7 of that Act; and

  • (b)

    provisions of the Corporations legislation that are specified by regulation.

• (3)

  Subsection (2) has effect for the Society and its employees only in relation to:

  • (a)

    the Committee; and

  • (b)

    its activities for Part 3.4 or the regulations made for that Part; and

  • (c)

    their other activities specified by regulation.

• (4)

  Subsection (2) has effect for the employees and members of the Committee only in relation to their activities for the Committee.

Part 7.7General matters 684Definition

In this Part:

regulatory authority means:

• (a)

  the Law Society; or

• (b)

  the Admission Board; or

• (c)

  the Funds Management Committee; or

• (d)

  the Disciplinary Tribunal; or

• (e)

  the Statutory Supervisor.

685Functions

A regulatory authority has the functions conferred on it under this Act or any other Act.

686Powers

A regulatory authority may do everything necessary and convenient to be done for the performance of its functions.

687Evidentiary provisions

• (1)

  A court, judge or person acting judicially must take judicial notice of the common seal of the Law Society or Funds Management Committee affixed to a document and must presume that it was properly affixed.

• (2)

  A signature purporting to be the signature of each of the following persons is evidence of the signature it purports to be:

  • (a)

    the chief executive officer of the Law Society;

  • (b)

    an Associate Judge;

  • (c)

    the chairperson of the Funds Management Committee;

  • (d)

    the chairperson of the Disciplinary Tribunal;

  • (e)

    the Statutory Supervisor.

  Chapter 8Legal profession rules and regulations

Part 8.1Legal profession rulesDivision 1Preliminary matters 688Purpose

The purpose of this Part is to promote the maintenance of high standards of professional conduct by Australian legal practitioners and Australian-registered foreign lawyers by providing for the making and enforcement of rules of professional conduct that apply to them when they practise in this jurisdiction.

Division 2Rules for Australian legal practitioners and locally-registered foreign lawyers 689Rules for Australian legal practitioners

The Law Society may make legal profession rules about legal practice in this jurisdiction engaged in by Australian legal practitioners.

690Rules for foreign lawyers

The Law Society may make legal profession rules about engaging in legal practice in this jurisdiction as an Australian-registered foreign lawyer.

691Subject matter of legal profession rules

• (1)

  Legal profession rules for Australian legal practitioners or Australian-registered foreign lawyers may make provision for or with respect to any aspect of legal practice, including standards of conduct expected of practitioners or lawyers to whom the rules apply.

• (2)

  The power to make rules is not limited to any matters for which this Act specifically authorises the making of legal profession rules.

• (3)

  Legal profession rules may regulate advertising by legal practitioners, including regulating advertising it considers:

  • (a)

    is false, misleading or deceptive; or

  • (b)

    may bring the administration of justice into disrepute; or

  • (c)

    may encourage persons to engage in legal proceedings that lack merit.

  Division 3Rules for incorporated legal practices and multi-disciplinary partnerships  

692Rule-making power

• (1)

  The Law Society may make legal profession rules for or with respect to the following matters:

  • (a)

    the provision of legal services by or in connection with incorporated legal practices or multi-disciplinary partnerships, and in particular the provision of legal services by:

    • (i)

      officers or employees of incorporated legal practices; or

    • (ii)

      partners or employees of multi-disciplinary partnerships;

  • (b)

    the provision of services that are not legal services by or in connection with incorporated legal practices or multi-disciplinary partnerships, but only if the provision of those services by:

    • (i)

      officers or employees of incorporated legal practices; or

    • (ii)

      partners or employees of multi-disciplinary partnerships;

  may give rise to a conflict of interest relating to the provision of legal services.

• (2)

  Legal profession rules may be made for or with respect to professional obligations relating to legal services provided by or in connection with incorporated legal practices or multi-disciplinary partnerships.

• (3)

  However, the legal profession rules cannot:

  • (a)

    regulate any services that an incorporated legal practice may provide or conduct (other than the provision of legal services or other services that may give rise to a conflict of interest relating to the provision of legal services); or

  • (b)

    regulate or prohibit the conduct of officers or employees of an incorporated legal practice (other than in connection with the provision of legal services or other services that may give rise to a conflict of interest relating to the provision of legal services); or

  • (c)

    regulate any services that a multi-disciplinary partnership or partners or employees of a multi-disciplinary partnership may provide or conduct (other than the provision of legal services or other services that may give rise to a conflict of interest relating to the provision of legal services); or

  • (d)

    regulate or prohibit the conduct of partners or employees of a multi-disciplinary partnership (other than in connection with the provision of legal services or other services that may give rise to a conflict of interest relating to the provision of legal services).

• (4)

  The power to make rules is not limited to any matters for which this Act specifically authorises the making of legal profession rules.

Division 4General matters 693Rule-making procedures

• (1)

  Before making legal profession rules, the Law Society must:

  • (a)

    arrange for consultation with and invite submissions from:

    • (i)

      the Chief Justice of the Supreme Court; and

    • (ii)

      the President of the Northern Territory Bar Association Incorporated; and

    • (iii)

      persons who, in the opinion of the Society, would have an interest in the rules; and

    • (iv)

      persons, or a class of persons, prescribed by the regulations; and

  • (b)

    give notice in a newspaper circulating in the Territory that rules are to be made and members of the public are invited to make written submissions to the Society about the rules.

• (2)

  Without limiting the power of the Legislative Assembly under section 63C of the Interpretation Act 1978, the Attorney-General may, by Gazette notice, disallow rules within 12 months after the rules are made.

• (3)

  If rules disallowed by the Attorney-General amended or repealed rules in force immediately before the disallowed rules came into effect, the disallowance revives the amended or repealed rules from the date of the disallowance as if the disallowed rules had not been made.

• (4)

  To avoid doubt, this section does not affect a power the Society or other professional body may otherwise have to make rules or issue directions or guidelines relating to the professional conduct of legal practitioners.

694Binding nature of legal profession rules

Legal profession rules are binding on Australian lawyers, Australian-registered foreign lawyers, law practices and complying community legal centres to which they apply.

695Legal profession rules inconsistent with Act or regulations

Legal profession rules do not have effect to the extent that they are inconsistent with this Act or the regulations.

Part 8.2Regulations 696Regulation-making power

• (1)

  The Administrator may make regulations under this Act.

• (2)

  The regulations may:

  • (a)

    prescribe fees payable under this Act; or

  • (b)

    provide for the fees the Law Society may charge for the services it provides.

  Chapter 9Miscellaneous matters      

697Contravention of certain provisions not offence

Section 69A of the Summary Offences Act 1923 does not apply to a provision of this Act that, apart from this section, it would otherwise apply.

698Liability of principals

• (1)

  If a law practice contravenes, whether by act or omission, any provision of this Act imposing an obligation on the practice, each principal of the practice is taken to have contravened the same provision, unless the principal establishes that:

  • (a)

    the practice contravened the provision without the knowledge actual, imputed or constructive of the principal; or

  • (b)

    the principal was not in a position to influence the conduct of the law practice in relation to its contravention of the provision; or

  • (c)

    the principal, if in that position, used all due diligence to prevent the contravention by the practice.

• (2)

  Subsection (1) does not affect the liability of the law practice for the contravention.

• (3)

  A contravention of a requirement imposed on a law practice by this Act is capable of constituting unsatisfactory professional conduct or professional misconduct by a principal of the practice.

699Associates who are disqualified or convicted persons

• (1)

  A law practice must not have a lay associate whom any principal or other legal practitioner associate of the practice knows to be:

  • (a)

    a disqualified person; or

  • (b)

    a person who has been convicted of a serious offence;

  unless the lay associate is approved by the Law Society under subsection (2).

• (2)

  The Society may, on application, approve a lay associate for this section.

• (3)

  An approval under this section may be subject to specified conditions.

• (4)

  If the Society refuses an application mentioned in subsection (2) or imposes a condition on the approval:

  • (a)

    the Society must give the applicant an information notice for the decision to refuse the application or impose the condition; and

  • (b)

    the applicant may appeal to the Supreme Court against the decision within 28 days after the notice is given to the applicant.

• (5)

  On hearing the appeal, the Court may make the order it considers appropriate.

• (6)

  A person is guilty of an offence if:

  • (a)

    the person is:

    • (i)

      a disqualified person; or

    • (ii)

      a person who has been convicted of a serious offence; and

  • (b)

    the person seeks to become a lay associate of a law practice; and

  • (c)

    the person has not informed the practice of the disqualification or conviction.

  Maximum penalty:          100 penalty units or imprisonment for 6 months.

• (7)

  Proceedings for an offence against subsection (6) may only be brought within 6 months after discovery of the offence by the law practice.

• (8)

  This section does not apply in circumstances prescribed by the regulations.

700Injunctions

• (1)

  This section applies if a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute:

  • (a)

    a contravention of this Act; or

  • (b)

    attempting to contravene this Act; or

  • (c)

    aiding, abetting, counselling or procuring a person to contravene this Act; or

  • (d)

    inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene this Act; or

  • (e)

    being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act; or

  • (f)

    conspiring with others to contravene this Act.

• (2)

  On the application of the Law Society, the Supreme Court may grant an injunction on the terms the Court considers appropriate restraining the first-mentioned person from engaging in the conduct and, if the Court considers it is desirable to do so, requiring that person to do anything.

• (3)

  The Statutory Supervisor may by notice filed in the Court intervene in the proceeding for an application for an injunction under subsection (2).

• (4)

  If an application for an injunction under subsection (2) has been made, the Court may, if the Court decides it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied this section applies.

• (5)

  If the Court considers it is desirable to do so, the Court may grant an interim injunction pending decision of an application under subsection (2).

• (6)

  The Court may discharge or vary an injunction granted under subsection (2) or (4).

• (7)

  The Court’s power to grant an injunction restraining a person from engaging in conduct may be exercised whether or not:

  • (a)

    it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

  • (b)

    the person has previously refused or failed to do that act or thing; and

  • (c)

    there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.

• (8)

  The Court must not require the Society or any other person, as a condition of granting an interim injunction, to give an undertaking as to damages.

701Disclosure of information by local regulatory authorities

• (1)

  A local regulatory authority may disclose information to another local regulatory authority about any matter relating to or arising under this Act or a corresponding law.

• (2)

  A local regulatory authority may disclose information to an interstate regulatory authority about any matter relating to or arising under this Act or a corresponding law.

• (3)

  In this section:

  interstate regulatory authority means:

  • (a)

    an authority having powers or functions under a corresponding law; or

  • (b)

    a person or body prescribed, or of a class prescribed, by the regulations.

  local regulatory authority means:

  • (a)

    an authority having powers or functions under this Act; or

  • (b)

    a person or body prescribed, or of a class prescribed, by the regulations.

  702Confidentiality of personal information
• (1)

  This section applies if a relevant person obtains personal information in the course of exercising powers or performing functions under this Act or any other Act.

• (2)

  The relevant person is guilty of an offence if the person:

  • (a)

    discloses the information to someone else; or

  • (b)

    does something that discloses the information to someone else and is reckless about whether:

    • (i)

      the information is personal information; or

    • (ii)

      doing the thing would result in the information being disclosed.

  Maximum penalty:          400 penalty units or imprisonment for 2 years.

• (3)

  Subsection (2) does not apply to the disclosure of information:

  • (a)

    to the extent the disclosure is reasonably required to exercise powers or perform functions under this Act or any other Act; or

  • (b)

    to the extent that the relevant person is expressly authorised, permitted or required to disclose the information under this Act or any other Act; or

  • (c)

    with the prior consent in writing of the person to whom the information relates; or

  • (d)

    to a court or tribunal in the course of legal proceedings; or

  • (e)

    under an order of a court or tribunal under another Act or law; or

  • (f)

    to the extent the disclosure is reasonably required to enable the enforcement or investigation of the criminal law or a disciplinary matter.

• (4)

  Subsection (2) extends to the disclosure of information that was disclosed under a corresponding law to a local regulatory authority or a relevant person.

• (5)

  In this section:

  local regulatory authority means:

  • (a)

    an authority having powers or functions under this Act; or

  • (b)

    a person or body prescribed, or of a class prescribed, by the regulations.

  personal information means information or an opinion (including information or an opinion forming part of a database), that is recorded in any form and whether true or not, about an individual whose identity is apparent, or can be reasonably ascertained, from the information or opinion, but does not include information or an opinion of a kind prescribed by the regulations.

  relevant person means:

  • (a)

    a local regulatory authority; or

  • (b)

    a member or former member of a local regulatory authority; or

  • (c)

    a person currently or previously employed by or acting at the direction of a local regulatory authority.

  703Client legal privilege or duty of confidence does not affect validity of or compliance with certain requirements
• (1)

  This section applies to a requirement under:

  • (a)

    section 256 to give written notice of an irregularity in connection with a trust account, a trust ledger account or trust money; or

  • (b)

    section 594 to give access to documents or information; or

  • (c)

    section 622 to produce documents, provide information or otherwise assist in, or cooperate with, an investigation.

• (2)

  The validity of the requirement is not affected, and a person is not excused from complying with the requirement, on the ground of client legal privilege or another duty of confidence.

704Duty to report suspected offences

• (1)

  This section applies if the Law Society suspects on reasonable grounds, after investigation or otherwise, that a person has committed an offence against any Act or law.

• (2)

  The Society must:

  • (a)

    report the suspected offence to the Commissioner of Police or other appropriate prosecuting authority; and

  • (b)

    make available to the Commissioner or authority the information and documents relevant to the suspected offence in its possession or under its control.

• (3)

  The obligation under subsection (2)(b) to make available the information and documents continues while the Society holds the relevant suspicion.

705Payment of fines

• (1)

  On payment of a fine imposed under this Act by the Law Society or Disciplinary Tribunal, the Society or Tribunal must pay the amount of the fine to the Funds Management Committee.

• (2)

  The Committee must pay the amount of the fine into the Fidelity Fund.

706Approved forms

An entity having a power or function under this Act may approve forms for use in connection with the power or function.

Chapter 10Repeals and transitional matters for Legal Profession Act 2006Part 10.1Repeals 707Repeal of legal practitioner legislation

The Acts specified in the Schedule are repealed.

708Repeal of other legislation

The Law Society Public Purposes Trust Act 1988 (Act No. 20 of 1988) is repealed.

Part 10.2Transitional mattersDivision 1Preliminary matters 709Definitions

In this Part:

commencement date means the date on which section 707 commences.

repealed Act means the Legal Practitioners Act 1974 as in force immediately before the commencement date.

Division 2Reservation of legal work and legal titles 710Her Majesty's counsel

• (1)

  This section applies to a legal practitioner who, immediately before the commencement date, held appointment under the repealed Act as one of Her Majesty’s Counsel.

• (2)

  Despite the repeal of the repealed Act:

  • (a)

    the practitioner continues to hold the appointment; and

  • (b)

    is entitled to use, as appropriate, the titles:

    • (i)

      Her Majesty’s Counsel and Queen’s Counsel; or

    • (ii)

      His Majesty’s Counsel and King’s Counsel.

    Division 3Admission of local lawyers  
  711Local roll

  The Roll of Legal Practitioners kept under the Rules made under the repealed Act immediately before the commencement date is taken to be, or to form part of, the local roll.

712Existing legal practitioners

If a person was admitted as a legal practitioner under the repealed Act before the commencement date, the person is taken to have been admitted as a local lawyer under this Act on the day the person was admitted under the repealed Act.

713Applications for admission

• (1)

  An application for admission as a legal practitioner that was pending immediately before the commencement date is taken to be an application for admission as a legal practitioner under this Act.

• (2)

  The applicant may be admitted as a legal practitioner under this Act if the applicant could have been admitted as a legal practitioner under the repealed Act and the admission requirements of this Act are taken to have been satisfied in relation to the applicant.

714References to legal practitioner

In an Act or document, a reference to a legal practitioner may, if the context permits, be taken to be a reference to an Australian legal practitioner or local legal practitioner as the case requires.

Division 4Legal practice by Australian legal practitioners 715Practising certificates

• (1)

  A practising certificate issued under the repealed Act and in force immediately before the commencement date is taken to be a local practising certificate.

• (2)

  Despite section 48, the practising certificate expires on the date it would have expired had this Act not been enacted.

• (3)

  The fee for renewal of the certificate is 75% of the fee prescribed by the regulations for the renewal of a local practising certificate for a financial year.

• (4)

  A condition or restriction applying to the practising certificate immediately before the commencement date continues to apply to the certificate on and after that date.

716Applications for practising certificate

• (1)

  An application for a practising certificate under the repealed Act that was pending immediately before the commencement date is taken to be an application for a local practising certificate.

• (2)

  Despite Part 2.3, the applicant may be granted a local practising certificate if the applicant could have been issued a practising certificate as a legal practitioner under the repealed Act.

717Supervised legal practice

A period of employment as a government lawyer or by a complying community legal centre under the supervision of a supervising legal practitioner before the commencement date must be taken into account for working out periods of supervised legal practice under section 73.

Division 5Incorporated legal practices and multi-disciplinary partnerships 718Incorporated legal practices

• (1)

  An incorporated legal practice providing legal services under the repealed Act immediately before the commencement date is not required to comply with section 122.

• (2)

  Section 130 does not apply in relation to any matter for which services are first provided before the commencement of that section.

• (3)

  A disqualification imposed under section 35AZE of the repealed Act is taken to have been imposed under section 140.

719Multi-disciplinary partnerships

• (1)

  An Australian legal practitioner providing legal services as a member of a multi-disciplinary partnership under the repealed Act immediately before the commencement date is not required to comply with section 153.

• (2)

  Section 159 does not apply in relation to any matter for which services are first provided before the commencement of that section.

Division 6Practising companies 720Definitions

In this Division:

former repealing Act means the Legal Practitioners Amendment (Incorporated Legal Practices and Multi-disciplinary Partnerships) Act 2003.

practising company means a practising company continued in existence under section 17 of the former repealing Act.

repealed incorporation Act means the Legal Practitioners (Incorporation) Act 1989, and statutory instruments made under that Act, as in force immediately before the commencement of the former repealing Act.

721Repealed incorporation Act

On the commencement date, the repealed incorporation Act ceases to apply to a practising company.

722Alteration of constitution

A practising company may alter its constitution only with the written approval of the Law Society.

723Practising company is law firm

For this Act, a practising company is a law firm being a partnership consisting of its directors.

724Directors to guarantee debts of company

The directors of a practising company are taken to guarantee (jointly and severally) the debts of the company.

725Records

For giving effect to sections 721 to 723, the Chief Justice and the Law Society may make the arrangements that are necessary and convenient relating to the records of approvals given under the repealed incorporation Act.

726Practising company becoming incorporated legal practice

• (1)

  On a practising company giving notice of its intention to engage in legal practice under section 122:

  • (a)

    this Part ceases to apply to it; and

  • (b)

    it becomes an incorporated legal practice.

• (2)

  Subsection (1) does not affect a right, privilege, obligation or liability acquired, accrued or incurred before the commencement date or any investigation, legal proceeding or remedy in relation to such a right, privilege, obligation or liability.

Division 7Legal practice by foreign lawyers 727Foreign lawyers

• (1)

  Registration as a locally-registered foreign lawyer granted under the repealed Act and in force immediately before the commencement date, or expressed to take effect on or after the commencement date, is taken to have been granted under this Act.

• (2)

  Notice seeking registration as a foreign lawyer under the repealed Act that was pending immediately before the commencement date is taken to be an application for registration as a locally-registered foreign lawyer under this Act.

• (3)

  Subsection (1) does not permit a person registered as a foreign lawyer under the repealed Act immediately before the commencement date to continue to provide any services that are not permitted to be provided under Part 2.7.

Division 8Trust money and trust accounts 728Definitions

In this Division:

former trust account provisions means the provisions of Part VII of the repealed Act in force immediately before the commencement date.

payment date, see section 729.

729Payment date

• (1)

  The payment date is the date that is 6 months after the commencement date.

• (2)

  However, if the Statutory Supervisor considers it is necessary or convenient for the transition from the repealed Act to this Act, the Supervisor may, by Gazette notice, fix a later date as the payment date.

730Continuing application of former trust account provisions

• (1)

  Subject to subsection (2), for the period starting on the commencement date and ending on 30 June 2007 or a later date prescribed by the regulations:

  • (a)

    Part 3.1 does not apply to law practices; and

  • (b)

    the former trust account provisions continue to apply to legal practitioners as if the repealed Act had not been repealed.

• (2)

  If, under the former trust account provisions, an audit of a legal practitioner’s records would have been required to be conducted after 30 June 2007 had the repealed Act not been repealed, the former trust account provisions continue to apply in relation to the legal practitioner as if the repealed Act had not been repealed.

731When offence not committed

An offence is not committed under the provisions of Part 3.1 or the regulations made for that Part for anything done or omitted to be done in good faith during the period of 3 months after the commencement date if:

• (a)

  it was done for the purpose of attempting to comply with any of the provisions; or

• (b)

  it was done in substantial conformity with the requirements of the repealed Act.

732Return of statutory deposits

• (1)

  This section applies if, on the commencement date, the Legal Practitioners’ Trust Committee holds an amount on deposit under Part VII, Division 7, of the repealed Act for a legal practitioner.

• (2)

  The Committee must pay the amount to the legal practitioner before the payment date.

• (3)

  However, if the amount or part of it is repaid under the former trust account provisions, subsection (2) applies only in relation to the amount held by the Committee.

733Interest on investment income

On the payment date, the Legal Practitioners’ Trust Committee must pay all investment income as defined in section 84A of the repealed Act into the Fidelity Fund.

Division 9Costs disclosure and assessment 734Definition

In this Division:

former costs provisions means the provisions of Part X of the repealed Act as in force immediately before the commencement date.

735Continuing application of former costs provisions

• (1)

  The former costs provisions continue to apply to a matter if the client first instructed the law practice in the matter before the commencement date.

• (2)

  Part 3.3 applies to a matter if the client first instructs the law practice on or after the commencement date.

• (3)

  However, if a law practice is retained by another law practice on behalf of a client on or after the commencement date in relation to a matter in which the other law practice was retained by the client before the commencement date, the former costs provisions continue to apply to the matter.

• (4)

  In addition, subsection (2) has effect subject to section 737.

736Taxation of costs

A taxation of costs started under the former costs provisions before the commencement date but not completed by that date must be completed under those provisions as if the repealed Act had not been repealed.

737Compliance with former costs provisions sufficient

For the period starting on the commencement date and ending on 31 December 2007, compliance with the former costs provisions by a legal practitioner is taken to be compliance with Part 3.3.

Division 10Professional indemnity insurance 738Existing professional indemnity insurance

Professional indemnity insurance maintained by a legal practitioner under the repealed Act and in force immediately before the commencement date is taken to be approved professional indemnity insurance under Part 3.4.

739Exemptions

An exemption granted by the Law Society under the regulations made under section 35B of the repealed Act is taken to have been granted under section 375(2).

Division 11Fidelity cover 740Definitions

In this Division:

new fund means the Legal Practitioners Fidelity Fund established under this Act.

old fund means the Legal Practitioners’ Fidelity Fund of the Northern Territory established under the repealed Act.

741Fidelity Fund

The old fund is taken to be the new fund.

742Amounts payable to and from old fund before commencement date

• (1)

  This section applies to an amount that was payable into, or was payable from, the old fund immediately before the commencement date.

• (2)

  If the amount is payable into the old fund and is received after the commencement date, the amount must be paid into the new fund.

• (3)

  If the amount was payable from the old fund before the commencement date but was not paid before that date, it may be paid from the new fund.

• (4)

  If an amount becomes payable in relation to a default happening before the commencement date, the amount may be paid from the new fund after that date.

• (5)

  In this section:

  default has the meaning applicable at the time the act or omission constituting the default happened.

743Determination for funding for Law Society

A determination for funding for regulatory authorities under section 388 may include funding for costs and expenses incurred by the Law Society in administering the repealed Act.

Division 12Complaints and discipline 744Pending investigations into professional conduct

• (1)

  This section applies if:

  • (a)

    before the commencement date:

    • (i)

      a complaint had been made to the Law Society under section 46 of the repealed Act in relation to the professional conduct of a legal practitioner or former legal practitioner; or

    • (ii)

      the Attorney-General had directed the Society to investigate the professional conduct of a practitioner or former legal practitioner; and

  • (b)

    immediately before the commencement date, an investigation into the conduct had not started.

• (2)

  Chapter 4 applies (with the necessary modifications) in relation to the conduct as if a complaint were made under Division 4 of that Part about the conduct.

• (3)

  However, disciplinary action may not be taken against a person under this Act in relation to the conduct that is more onerous than the disciplinary action that could have been taken against the person under the repealed Act in relation to the conduct.

745Investigations into professional conduct

• (1)

  This section applies if:

  • (a)

    before the commencement date, the Law Society had started an investigation under section 46B of the repealed Act in relation to the professional conduct of a legal practitioner or former legal practitioner; and

  • (b)

    immediately before the commencement date, the investigation had not been completed.

• (2)

  The investigation must be completed under the repealed Act as if it had not been repealed.

• (3)

  If a person would have been entitled to appeal against a decision of the Society on the investigation under section 49 of the repealed Act had that Act not been repealed, the person may appeal to the Supreme Court against the decision of the Society under section 513 as if it were a decision to take action under section 499(2).

746Pending hearings and inquiries

• (1)

  This section applies if:

  • (a)

    before the commencement date:

    • (i)

      an appeal was lodged under section 49 of the repealed Act; or

    • (ii)

      a charge was laid under section 50 of the repealed Act; and

  • (b)

    immediately before the commencement date, the Legal Practitioners Complaints Committee had not completed its hearing into the appeal or inquiry into the charge.

• (2)

  The appeal or charge must be completed under the repealed Act as if it had not been repealed.

• (3)

  For this section, the Committee constituted under the repealed Act for the appeal or inquiry continues in existence.

• (4)

  The decision of the Committee on the hearing or charge may be enforced as if it were an order of the Disciplinary Tribunal.

• (5)

  If a person would have been entitled to appeal against the decision under section 51B of the repealed Act had that Act not been repealed, the person may appeal to the Supreme Court against the decision under section 533 as if it were a decision of the Tribunal to make an order under section 525.

747New complaints about old conduct

• (1)

  This section applies to conduct that:

  • (a)

    happened or is alleged to have happened before the commencement date; and

  • (b)

    could have been, but was not, the subject of a complaint under the repealed Act.

• (2)

  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 under this Act if it had happened after the commencement date.

• (3)

  Chapter 4 applies (with the necessary modifications) in relation to the conduct.

• (4)

  However, disciplinary action may not be taken against a person under this Act in relation to the conduct that is more onerous than the disciplinary action that could have been taken against the person under the repealed Act in relation to the conduct.

Division 13External intervention 748Application of Chapter 5 for existing Part VIIIA managers

Chapter 5 applies on and after the commencement date in relation to a manager appointed under Part VIIIA of the repealed Act as if the receiver had been appointed under Part 5.4.

749Continued application of Part IX to application for appointment of receiver

Part IX of the repealed Act continues to apply to an application for the appointment of a receiver made under that Part that was pending immediately before the commencement date.

750Application of Chapter 5 for existing Part IX receivers

Chapter 5 applies on and after the commencement date in relation to a receiver appointed under Part IX of the repealed Act (whether the appointment is made before or after that date) as if the receiver had been appointed under Part 5.5.

Division 14Regulatory authorities 751Law Society

• (1)

  The Law Society Northern Territory established by section 635(1) is taken to be a continuation of, and the same legal entity as, the Law Society Northern Territory constituted under the repealed Act.

• (2)

  The Law Society’s constitution as in force immediately before the commencement date is the Law Society’s constitution under section 644.

• (3)

  An elected member of the council of the Law Society holding office immediately before the commencement date continues to hold office until the member’s term of office ends under the constitution.

• (4)

  A member of the Law Society immediately before the commencement date continues to be a member of the Society until the member’s membership ends under the constitution.

752Admission Board

• (1)

  A legal practitioner appointed as a member of the Legal Practitioners Admission Board and holding office immediately before the commencement date is taken to be an appointed member of the Admission Board under Part 7.2.

• (2)

  Subject to section 653, the member holds office until the appointment would have ended under the repealed Act as if it had not been repealed.

753Legal Practitioners' Fidelity Fund Committee

The Legal Practitioners Funds Management Committee is taken to be a continuation of, and the same legal entity as, the Legal Practitioners’ Fidelity Fund Committee constituted under the repealed Act.

754Legal Practitioners' Trusts Committee

• (1)

  The Legal Practitioners’ Trusts Committee continues in existence for Division 8.

  Note for subsection (1)

  Under Division 8, the Committee has functions relating to the former trust account provisions under that Division.

• (2)

  Subsection (1) applies as if Part VII, Division 7, of the repealed Act had not been repealed.

• (3)

  The Committee ceases to exist on the day after the payment date under Division 8.

• (4)

  On that day, the assets and liabilities of the Committee vest in the Legal Practitioners Funds Management Committee.

Division 15Admission rules and legal professional conduct rules 755Admission rules

The Legal Practitioners Admission Rules (Subordinate Legislation No. 58 of 2003) as in force immediately before the commencement date are taken to be the admission rules under this Act.

756Professional conduct rules

The Rules of Professional Conduct and Practice (Subordinate Legislation No. 7 of 2002) as in force immediately before the commencement date are taken to be legal profession rules under this Act.

Division 16Law Society public purposes trust 757Winding-up of trust

• (1)

  On the winding-up of the Trust, the Law Society may pay the amount comprising the balance of the Trust Fund to the Funds Management Committee for payment into the Fidelity Fund.

• (2)

  In this section:

  Trust means the trust established by the Trust Deed in the Schedule to the Law Society Public Purposes Trust Act 1988.

  Trust Fund means the Trust Fund as defined in the Trust Deed.

Division 17Miscellaneous matters 758General saving and transitional provision

• (1)

  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 repealed Act and still had effect immediately before the commencement date, the thing continues in effect on and after that date as if:

  • (a)

    this Act had been in force when it was done; and

  • (b)

    it had been done under this Act.

• (2)

  If subsection (1) applies in relation to the signing, lodgment, issue or publication of a written instrument, a reference in the instrument to a provision of the repealed Act must, for that subsection, be read as a reference to the corresponding provision of this Act.

• (3)

  Without limiting subsections (1) and (2), if a provision of the repealed Act that corresponds to a provision of this Act would, but for its repeal, have applied in relation to anything done or being done or in existence before the commencement date, the provision of this Act applies (with the necessary modifications) in relation to the thing.

• (4)

  This section does not have effect to the extent that:

  • (a)

    other provision is made by this Part; or

  • (b)

    the context or subject matter otherwise indicates or requires.

  759Continued application of repealed Act

  If a provision of the repealed Act continues to apply under this Part, the following provisions also continue to apply in relation to the provision:

  • (a)

    other provisions of the repealed Act necessary to give effect to the continued provision;

  • (b)

    subordinate legislation made under the repealed Act for the continued provision as in force immediately before the commencement date.

  760Interpretation Act not affected

  Unless the contrary intention appears, this Part does not limit Part III of the Interpretation Act 1978.

ScheduleActs repealed

section 707

Legal Practitioners Ordinance 1974	Ordinance No. 18, 1974
Legal Practitioners Ordinance 1977	Ordinance No. 19, 1977
Legal Practitioners Ordinance 1978	Ordinance No. 12, 1978
Legal Practitioners Amendment Act 1981	Act No. 56, 1981
Legal Practitioners Amendment Act 1982	Act No. 52, 1982
Legal Practitioners Amendment Act (No. 2) 1982	Act No. 91, 1982
Legal Practitioners Amendment Act 1983	Act No. 32, 1983
Legal Practitioners Amendment Act 1987	Act No. 36, 1987
Legal Practitioners Amendment Act 1990	Act No. 38, 1990
Legal Practitioners Amendment Act (No. 2) 1990	Act No. 43, 1990
Legal Practitioners Amendment Act 1993	Act No. 42, 1993
Legal Practitioners Amendment Act 1995	Act No. 10, 1995
Legal Practitioners Amendment Act 1999	Act No. 30, 1999
Legal Practitioners Amendment Act 2000	Act No. 29, 2000
Legal Practitioners Amendment Act 2001	Act No. 61, 2001
Legal Practitioners Amendment (Mortgage Practices) Act 2002	Act No. 44, 2002
Legal Practitioners Amendment (Community Legal Centres) Act 2002	Act No. 45, 2002
Legal Practitioners Amendment (Costs and Advertising) Act 2003	Act No. 18, 2003
Legal Practitioners Amendment (Incorporated Legal Practices and Multi-Disciplinary Partnerships) Act 2003	Act No. 51, 2003
Legal Practitioners Amendment Act 2005	Act No. 16, 2005

ENDNOTES

• 1

  KEY

Key to abbreviations

 

amd = amended od = order

app = appendix om = omitted

bl = by-law pt = Part

ch = Chapter r = regulation/rule

cl = clause rem = remainder

div = Division renum = renumbered

exp = expires/expired rep = repealed

f = forms s = section

Gaz = Gazette sch = Schedule

hdg = heading sdiv = Subdivision

ins = inserted SL = Subordinate Legislation

lt = long title sub = substituted

nc = not commenced

• 2

  LIST OF LEGISLATION

Legal Profession Act 2006 (Act No. 38, 2006)
Assent date	18 December 2006
Commenced	s 708: 1 July 2007; rem: 31 March 2007 (Gaz G13, 28 March 2007, p 3)
Justice Legislation Amendment Act 2007 (Act No. 5, 2007)
Assent date	24 April 2007
Commenced	s 37 (except amd of Criminal Code and Legal Profession Act 2006): 1 May 2007 (s 2(1), s 2 Victims of Crime Assistance Act 2006 (Act No. 15, 2006) and Gaz G17, 26 April 2007, p 7); rem: 24 April 2007
Justice Legislation Amendment Act (No. 2) 2007 (Act No. 32, 2007)
Assent date	12 December 2007
Commenced	8 January 2008 (Gaz S2, 8 January 2008)
Statute Law Revision Act 2008 (Act No. 6, 2008)
Assent date	11 March 2008
Commenced	11 March 2008
Legal Profession Amendment (Complaints and Discipline) Act 2008 (Act No. 19, 2008)
Assent date	24 June 2008
Commenced	24 June 2008
Local Government (Consequential Amendments) Act 2008 (Act No. 28, 2008)
Assent date	14 November 2008
Commenced	1 July 2008 (s 2)
Ombudsman Act 2009 (Act No. 5, 2009)
Assent date	12 March 2009
Commenced	1 July 2009 (Gaz G21, 27 May 2009, p 5)
Justice Legislation Amendment Act 2009 (Act No. 12, 2009)
Assent date	26 May 2009
Commenced	24 June 2009 (Gaz G25, 24 June 2009, p 2)
Oaths, Affidavits and Declarations (Consequential Amendments) Act 2010 (Act No. 40, 2010)
Assent date	18 November 2010
Commenced	1 March 2011 (s 2, s 2 Oaths, Affidavits and Declarations Act 2010 (Act No. 39, 2010) and Gaz G7, 16 February 2011, p 4)
Evidence (National Uniform Legislation) (Consequential Amendments) Act 2012 (Act No. 23, 2012)
Assent date	21 November 2012
Commenced	1 January 2013 (Gaz G51, 19 December 2012, p 4)
Local Government Amendment Act 2014 (Act No. 19, 2014)
Assent date	2 June 2014
Commenced	s 16: 1 July 2014; s 18: 1 December 2014; rem: 2 June 2014 (s 2)
Correctional Services (Related and Consequential Amendments) Act 2014 (Act No. 27, 2014)
Assent date	4 September 2014
Commenced	9 September 2014 (Gaz S80, 9 September 2014, p 2)
Statute Law Revision Act 2014 (Act No. 38, 2014)
Assent date	13 November 2014
Commenced	13 November 2014
Local Court (Related Amendments) Act 2016 (Act No. 8, 2016)
Assent date	6 April 2016
Commenced	1 May 2016 (s 2, s 2 Local Court (Repeals and Related Amendments) Act 2016 (Act No. 9, 2016) and Gaz S34, 29 April 2016)
Statute Law Revision Act 2017 (Act No. 4, 2017)
Assent date	10 March 2017
Commenced	12 April 2017 (Gaz G18, 12 April 2017, p 3)
Supreme Court Amendment (Associate Judges) Act 2017 (Act No. 18, 2017)
Assent date	5 September 2017
Commenced	22 November 2017 (Gaz S84, 21 November 2017, p 1)s
Expungement of Historical Homosexual Offence Records Act 2018 (Act No. 8, 2018)
Assent date	23 May 2018
Commenced	14 November 2018 (Gaz G46, 14 November 2018, p 1)
Statute Law Revision Act 2018 (Act No. 10, 2018)
Assent date	23 May 2018
Commenced	20 June 2018 (Gaz S41, 20 June 2018)
Judicial Commission Act 2020 (Act No. 17, 2020)
Assent date	1 July 2020
Commenced	10 November 2021 (Gaz G45, 10 November 2021, p 1)
Interpretation Amendment Act 2021 (Act No. 28, 2021)
Assent date	15 December 2021
Commenced	1 January 2022 (s 2)

• 3

  CORRECTIVE REGULATION

Legal Profession Regulations (SL No. 9, 2007)
Notified	18 April 2007
Commenced	18 April 2007

Schedule 4 specifies provisions containing minor errors and how the provisions are to be read pending formal amendment.   Corrections to ss 4, 74, 75(3), 90(1) and 645 hdg are not listed in the List of Amendments.

• 4

  GENERAL AMENDMENTS

General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22 of 2018) to: ss 1, 4, 18, 43, 94, 96, 130, 159, 282, 288, 289, 351, 438, 637, 642, 645, 646, 646, 661, 663, 693, 697, 709, 720, 757 and 760.

• 5

  LIST OF AMENDMENTS

s 4                     amd No. 32, 2007, s 14; No. 6, 2008, s 3; No. 19, 2008, s 8; No. 8, 2016, s 45; No. 4, 2017, s 11; No. 18, 2017, s 36

s 11                   amd No. 12, 2009, s 7; No. 8, 2018, s 39

s 16                   sub No. 4, 2017, s 12

s 21                   amd No. 8, 2016, s 45

s 43                   amd No. 40, 2010, s 118

ss 74 – 75          amd No. 6, 2008, s 3

s 90                   amd No. 6, 2008, s 3

s 323                 amd No. 32, 2007, s 15

s 326                 amd No. 32, 2007, s 16

s 344                 amd No. 32, 2007, s 17

s 345                 amd No. 32, 2007, s 18

s 346                 sub No. 32, 2007, s 19

s 350                 sub No. 32, 2007, s 20

s 351                 amd No. 32, 2007, s 21; No. 8, 2016, s 45; No. 18, 2017, s 36; No. 10, 2018, s 6

s 352                 amd No. 32, 2007, s 22

s 353                 amd No. 32, 2007, s 23

s 358                 amd No. 32, 2007, s 24

s 361                 amd No. 32, 2007, s 25

s 366                 amd No. 32, 2007, s 26; No. 8, 2016, s 45

s 467                 amd No. 28, 2008, s 3; No. 19, 2014, s 26; No. 8, 2016, s 45; No. 18, 2017, s 36; No. 17, 2020, s 85

s 530                 amd No. 19, 2008, s 3

s 533                 amd No. 19, 2008, s 4

s 565                 amd No. 23, 2012, s 32

s 571                 amd No. 27, 2014, s 57

s 595                 amd No. 40, 2010, s 118

s 625                 amd No. 8, 2016, s 45

s 645                 amd No. 6, 2008, s 3

s 646                 amd No. 5, 2009, s 179

s 647                 amd No. 19, 2008, s 5

s 651                 amd No. 18, 2017, s 36

s 655                 amd No. 18, 2017, s 36

s 657                 amd No. 38, 2014, s 2

s 658                 amd No. 5, 2007, s 37

s 667                 amd No. 38, 2014, s 2

s 670                 amd No. 8, 2016, s 45

s 676A               ins No. 32, 2007, s 27

rep No. 19, 2008, s 6

s 677A               ins No. 19, 2008, s 7

s 677                 amd No. 38, 2014, s 2

s 687                 amd No. 18, 2017, s 36; No. 10, 2018, s 6

s 693                 amd No. 28, 2021, s 20

s 703                 amd No. 23, 2012, s 32

s 758                 amd No. 4, 2017, s 13

s 761                 exp No. 38, 2006, s 761(4)

s 762                 exp No. 38, 2006, s 762(4)