2006
2006
2006-07-02
act
government
publicspecial
act.reprint
allinforce
2006-04-05
2006-04-05
2006-07-02
act-2006-030
2006
none
act-2006-030
ff622069-e608-4936-a2be-a8e5f25d95e6
e8c671cd-6add-4672-b9e6-40a238a572ad
Note—
The Act was repealed by sec 6 (1) of this Act
with effect from 2.7.2006.
An Act to amend the Legal
Profession Act 2004 in relation to the prohibition on
engaging in unqualified legal practice, the grant of practising certificates,
the penalties for and the investigation and prosecution of advertising
offences, compensation orders, costs disclosures, costs agreements, costs
assessments, foreign lawyers, and in other respects; to amend other Acts and
the Legal Profession Regulation
2005 to make consequential and other amendments; and for
other purposes.
1Name of
Act
This Act is the Legal Profession
Amendment Act 2006.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Amendment of Legal Profession Act 2004 No
112
The Legal Profession
Act 2004 is amended as set out in Schedules
1–8.
4Amendment of other
Acts
The Acts specified in Schedule 9 are amended as
set out in that Schedule.
5Amendment of Legal Profession Regulation
2005
The Legal Profession
Regulation 2005 is amended as set out in Schedule
10.
6Repeal of
Act
(1)
This Act is repealed on the day following the day
on which all of the provisions of this Act have
commenced.
(2)
The repeal of this Act does not, because of the
operation of section 30 of the Interpretation
Act 1987, affect any amendment made by this
Act.
Schedule 1Amendment of Chapter 1 of
Legal Profession Act
2004
(Section 3)
[1]Section 4
Definitions
Omit “or issue” from the definition
of admission
to the legal profession in section 4
(1).
[2]Section 4
(1)
Insert in alphabetical order:
grant of a practising certificate
includes the issue of a practising certificate.
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 of the Commonwealth,
or
(b)
his or her presentation (as a debtor) of a
declaration to the Official Receiver under section 54A of the Bankruptcy Act
1966 of the Commonwealth of his or her intention to
present a debtor’s petition or his or her presentation (as a debtor) of
such a petition under section 55 of that Act, or
(c)
his or her applying to take the benefit of any
law for the relief of bankrupt or insolvent debtors, compounding with his or
her creditors or making an assignment of his or her remuneration for their
benefit, or
(d)
his or her conviction for a serious offence or a
tax offence, whether or not:
(i)
the offence was committed in or outside this
jurisdiction, or
(ii)
the offence was committed while the person was
engaging in legal practice as an Australian legal practitioner or was
practising foreign law as an Australian-registered foreign lawyer, as the case
requires, or
(iii)
other persons are prohibited from disclosing the
identity of the offender.
Schedule 2Amendment of Chapter 2 of
Legal Profession Act
2004
(Section 3)
[1]Section 14 Prohibition on
engaging in legal practice when not entitled
Omit “for fee, gain or reward” from
section 14 (1).
[2]Section 45 Application for
grant or renewal of local practising certificate
Insert after section 45 (5):
(6)
A reference in this section to engaging in legal
practice principally in this or any other jurisdiction applies only to legal
practice in Australia. Accordingly, an Australian lawyer who is engaged or
expects to be engaged in legal practice principally in a foreign country is
nevertheless eligible to apply for the grant or renewal of a local practising
certificate if the lawyer otherwise meets the requirements of this
section.
Note—
The purpose of this subsection is to deal with a
case where a person practises both in Australia and overseas. In that case,
overseas practice is to be disregarded (even if it forms the principal portion
of the person’s overall practice), so that eligibility is determined by
reference only to the person’s practice in
Australia.
(7)
An Australian lawyer is also eligible to apply
for the grant or renewal of a local practising certificate if the lawyer is of
a class or description prescribed by the regulations. The regulations may
provide that a Council has a discretion as to whether or not to grant or renew
a local practising certificate to a person in his or her capacity as an
Australian lawyer of that class or description.
Note—
The purpose of this subsection is to enable
regulations to be made conferring eligibility on an Australian lawyer who is
not otherwise eligible to apply for a local practising certificate.
Regulations could be made conferring eligibility, for example, on an
Australian lawyer who practises exclusively overseas, or an Australian lawyer
who holds a public office of a specified kind.
[3]Section 54 Statutory condition
regarding practice as a barrister
Insert at the end of the section:
(2)
Subsection (1) does not apply to:
(a)
a barrister who is, or who is of a class or
description of barristers, specified by the Bar Council for the purposes of
this section, or
(b)
a barrister who is of a class or description of
barristers prescribed by the regulations for the purposes of this
section,
to the extent respectively specified by the Bar Council
or prescribed by the regulations.
[4]Section 65 Definition of
“show cause event”
Omit the section.
[5]Section 66 Applicant for local
practising certificate—show cause event
Omit “issue” wherever occurring in
section 66 (7) and (8).
Insert instead
“grant”.
[6]Section 78 Immediate
suspension of local practising certificate
Omit “section 61” from section 78 (2)
(a). Insert instead “section 61 (4)”.
[7]Section 85 Regulation of
advertising and other marketing of services
Omit “100 penalty units” wherever
occurring in section 85 (2) and (8).
Insert instead “200 penalty
units”.
[8]Section 85
(12)
Omit the subsection.
[9]Section 102 Special provisions
about interstate legal practitioner engaging in unsupervised legal practice as
solicitor in this jurisdiction
Insert “as a solicitor” after
“practice” where firstly occurring.
[10]Section 105 Consideration and
investigation of applicants or holders
Omit “authority” from section 105 (1)
(c). Insert instead “Council”.
[11]Section 129 Show cause
procedure for cancellation of local practising certificate following foreign
regulatory action
Omit “lawyer” from section 129 (3).
Insert instead “practitioner”.
[12]Section 184
Definitions
Omit the definition of show cause
event.
[13]Section 193
Advertising
Omit “the practice of law” wherever
occurring in section 193 (1).
Insert instead “legal practice engaged
in”.
[14]Section 195 Trust money and
trust accounts
Insert “and Australian legal
practitioners” after “practices” in section 195
(1).
[15]Section 195
(3)
Insert “, the regulations or any legal
profession rule” after “this Act”.
[16]Section 203 Requirements
regarding applications for grant or renewal of
registration
Omit “carrying on the practice of
law” from section 203 (2) (f) (i).
Insert instead “engaging in legal
practice”.
[17]Section 203 (2) (f)
(i)
Omit “carry on the practice of law”.
Insert instead “engage in legal practice”.
[18]Section 203 (2) (f)
(ii)
Omit “carrying on any practice of
law”.
Insert instead “engaging in legal
practice”.
[19]Section 203 (2)
(g)
Omit “the practice of law”. Insert
instead “legal practice engaged in”.
[20]Section 203 (2)
(g)
Omit “the applicant’s practice of
law”.
Insert instead “legal practice by the
applicant”.
[21]Section 203 (3)
(b)
Omit “practise law”. Insert instead
“engage in legal practice”.
[22]Section 205 Requirement to
grant or renew registration if criteria satisfied
Omit “the practice of law” wherever
occurring in section 205 (1) (b) and (c) (ii).
Insert instead “legal
practice”.
[23]Section 205 (1) (c)
(i)
Omit “carrying on the practice of
law”.
Insert instead “engaging in legal
practice”.
[24]Section 206 Refusal to grant
or renew registration
Omit “carries on the practice of law”
from section 206 (2) (h).
Insert instead “engages in legal
practice”.
Schedule 3Amendment of Chapter 3 of
Legal Profession Act
2004
(Section 3)
[1]Section 290 Payment of certain
costs and expenses from Fund
Omit “a Council in exercising its
functions” from section 290 (1) (k).
Insert instead “a Council or the
Commissioner in exercising functions”.
[2]Section 290 (1)
(p)
Insert after section 290 (1) (o):
(p)
without limiting any other paragraph, the costs
of a Council or the Commissioner in exercising functions under section 85
(Regulation of advertising and other marketing of services) or regulations
under that section (including the prosecution of offences under that section
or those regulations).
[3]Section 297 Application of
Part to community legal centres
Omit “an Australian legal
practitioner” from section 297 (2) (a).
Insert instead “a law
practice”.
[4]Section 297 (2)
(b)
Omit “an Australian legal practitioner on
behalf of another person in the course of practising as an Australian legal
practitioner”.
Insert instead “a law practice on behalf of
another person”.
[5]Section 309 Disclosure of
costs to clients
Insert “, whether a specific rate or a
benchmark rate,” after “(if any)” in section 309 (1)
(e).
[6]Section 309 (1) (i)
(ii)
Omit the subparagraph. Insert instead:
(ii)
the setting aside of a costs agreement or a
provision of a costs agreement under section 328 (Setting aside costs
agreements or provisions of costs agreements),
[7]Section 309 (1A) and
(1B)
Insert after section 309 (1):
(1A)
For the purposes of subsection (1) (e), a
benchmark rate of interest is a rate of interest for the time being equal to
or calculated by reference to a rate of interest that is specified or
determined from time to time by an ADI or another body or organisation, or by
or under other legislation, and that is publicly
available.
(1B)
The regulations may make provision for or with
respect to the use of benchmark rates of interest, and in particular for or
with respect to permitting, regulating or preventing the use of particular
benchmark rates or particular kinds of benchmark rates.
[8]Section 312 Exceptions to
requirement for disclosure
Omit section 312 (1) (c). Insert instead:
(c)
if the client or prospective client is:
(i)
a law practice or an Australian legal
practitioner, or
(ii)
a public company, a subsidiary of a public
company, a large proprietary company, a foreign company, a subsidiary of a
foreign company or a registered Australian body (respectively within the
meaning of the Corporations Act 2001 of the
Commonwealth), or
(iii)
a financial services licensee (within the meaning
of that Act), or
(iv)
a liquidator, administrator or receiver (as
respectively referred to in that Act), or
(v)
a partnership that carries on the business of
providing professional services if the partnership consists of 20 or more
members or if the partnership would be a large proprietary company (within the
meaning of that Act) if it were a company, or
(vi)
a proprietary company (within the meaning of that
Act) formed for the purpose of carrying out a joint venture, if any
shareholder of the company is a person to whom disclosure of costs is not
required, or
(vii)
an unincorporated group of participants in a
joint venture, if any member of the group is a person to whom disclosure of
costs is not required and if any other members of the group who are not such
persons have indicated that they waive their right to disclosure,
or
(viii)
a Minister of the Crown in right of a
jurisdiction or the Commonwealth acting in his or her capacity as such, or a
government department or public authority of a jurisdiction or the
Commonwealth,
[9]Section 317 Effect of failure
to disclose
Insert “or a provision of the costs
agreement” after “the costs agreement” in section 317
(2).
[10]Section 321 Interest on unpaid
legal costs
Insert “, whether the bill is given in the
form of a lump sum bill or an itemised bill” after “Part” in
section 321 (1).
[11]Section 321 (4)
(a)
Omit “prescribed under the Supreme Court Act
1970”.
Insert instead “prescribed by rules under
section 101 (Interest after judgment) of the Civil Procedure
Act 2005”.
[12]Section 321
(5)
Insert after section 321 (4):
(5)
Subsection (1) applies in relation to a bill of
costs given in the form of a lump sum bill even if the client afterwards
requests or is afterwards given an itemised bill.
[13]Section 323 Conditional costs
agreements
Insert after section 323 (4):
(4A)
Subsection (3) (c) (iii), (d) and (e) do not
apply to a conditional costs agreement if disclosure under:
(a)
section 309 (Disclosure of costs to clients),
or
(b)
section 310 (1) (Disclosure if another law
practice is to be retained),
in relation to the agreement was not or would not be
required in the circumstances referred to in section 312 (1) (c) or (d)
(Exceptions to requirement for disclosure).
[14]Section 324 Conditional costs
agreements involving uplift fees
Omit section 324 (4). Insert instead:
(4)
If a conditional costs agreement relates to a
litigious matter, the premium must not exceed 25% of the legal costs
(excluding unpaid disbursements) otherwise payable.
[15]Section 327 Certain costs
agreements are void
Insert after section 327 (3):
(3A)
A law practice that has entered into a costs
agreement in contravention of section 324 (2)–(5) (Conditional costs
agreements involving uplift fees) is not entitled to recover the whole or any
part of the uplift fee and must repay any amount received in respect of the
uplift fee to the person from whom it was received.
[16]Section 327
(4)
Omit “section 324”. Insert instead
“section 324 (1)”.
[17]Section 328 Setting aside
costs agreements or provisions of costs agreements
Insert “or a provision of a costs
agreement” after “a costs agreement” wheverever occurring in
section 328 (1) and the note to the subsection.
[18]Section 328
(1A)
Insert after section 328 (1):
(1A)
The costs assessor may:
(a)
set aside merely a provision of the costs
agreement even if the client applied for the whole agreement to be set aside,
or
(b)
set aside the whole costs agreement even if the
client applied merely for a provision of the agreement to be set
aside.
[19]Section 328
(4)
Insert “or a provision of a costs
agreement” after “a costs agreement”.
[20]Section 328 (4) and
(5)
Insert “or the provision of the
agreement” after “the agreement” wherever
occurring.
[21]Section 328
(6)
Insert “or the provision of the costs
agreement” after “agreement”.
[22]Section 328
(11)
Insert after section 328 (10):
(11)
Subdivision 6 (Appeals) of Division 11 applies in
relation to a determination to make, or not make, an order under subsection
(1) or (4) as if references in that Subdivision to an application for a costs
assessment were references to an application to set aside a costs agreement or
a provision of a costs agreement.
[23]Section 331 Legal costs cannot
be recovered unless bill has been served
Omit “A law practice” from section
331 (1).
Insert instead “Subject to section 332A
(Person may request itemised bill), a law
practice”.
[24]Section
332A
Insert after section 332:
332APerson may request itemised
bill
(1)
Within 30 days after receiving a lump sum bill, a
person may request the law practice to give them an itemised
bill.
(2)
If a person makes a request under subsection (1),
the law practice must not commence any proceedings to recover those costs
until at least 30 days after complying with the request.
(3)
A law practice is not entitled to charge a person
for the preparation of an itemised bill requested under this
section.
(4)
Section 332 (2)–(7) (Bills) apply to the
giving of an itemised bill under this section.
[25]Section 333 Notification of
client’s rights
Omit section 333 (a) (ii). Insert instead:
(ii)
the setting aside of a costs agreement or a
provision of a costs agreement under section 328 (Setting aside costs
agreements or provisions of costs agreements),
[26]Section 333
(2)
Insert at the end of the section after the
note:
(2)
Subsection (1) does not apply to a bill if
disclosure under:
(a)
section 309 (Disclosure of costs to clients),
or
(b)
section 310 (1) (Disclosure if another law
practice is to be retained),
in relation to the relevant costs agreement was not or
would not be required in the circumstances referred to in section 312 (1) (c)
or (d) (Exceptions to requirement for disclosure).
[27]Section 352 Application for
costs assessment by law practice giving bill
Omit “a costs assessor” from section
352 (1).
Insert instead “the Manager, Costs
Assessment”.
[28]Section 361 Assessment of
complying costs agreements
Omit “costs, and” from section 361
(1) (b). Insert instead “costs”.
[29]Section 361 (1)
(c)
Omit the paragraph.
[30]Section 361
(2)
Omit the subsection and note. Insert
instead:
(2)
This section has effect subject to section 328
but does not limit the operation of section 365.
Note—
Section 328 provides for the setting aside of a
costs agreement or a provision of a costs agreement. Section 365 provides that
a costs assessor may have regard to, but not apply the terms of, a costs
agreement in assessing party/party costs.
[31]Section 368 Certificate as to
determination
Omit “to each party and the Manager, Costs
Assessment” from section 368 (1).
[32]Section 368
(5A)
Insert after section 368 (5):
(5A)
The costs assessor must forward the certificate
or a copy of the certificate to:
(a)
the Manager, Costs Assessment,
and
(b)
each party to the assessment, unless subsection
(6) applies.
[33]Section 368 (6)
(a)
Omit the paragraph. Insert instead:
(a)
forward a copy of the certificate to the Manager,
Costs Assessment only, and
[34]Section 369 Recovery of costs
of costs assessment
Insert after section 369 (2):
(2A)
Subject to any order of or the rules of the
relevant court or tribunal, the costs assessor may determine by whom and to
what extent the costs of an assessment referred to in section 364 (Assessment
of costs—costs ordered by court or tribunal) are payable and include the
determination in the certificate issued under this section in relation to the
assessment.
[35]Section 369
(5)
Insert “and forward” after
“issue”.
[36]Section 369
(10)
Omit “means”. Insert instead
“includes”.
[37]Section 369
(10)
Insert “also” before
“includes”.
[38]Section 373 Application by
party for review of determination
Omit “the issue of” from section 373
(1).
[39]Section 373
(1)
Insert “has been forwarded to the
parties” before “that”.
[40]Section 373 (1),
note
Insert “or a provision of the costs
agreement” after “the costs
agreement”.
[41]Section 485 Failure to obtain
fidelity insurance for regulated mortgage
Omit “issue” from section 485 (1).
Insert instead “grant”.
Schedule 4Amendment of Chapter 4 of
Legal Profession Act
2004
(Section 3)
[1]Section 508 Practitioner to be
notified of complaint
Insert “to” after
“likely” in section 508 (3).
[2]Section 508 (3)
(a)–(d)
Omit “to” wherever occurring at the
beginning of each paragraph.
[3]Section 511 Summary dismissal
of complaints
Omit “authority” wherever occurring
in section 511 (1) (a) and (h).
Insert instead “Commissioner or
Council”.
[4]Section 511 (1)
(f)
Omit “an”. Insert instead
“any”.
[5]Section 533 Referral of
matters to costs assessors
Insert after section 533 (4):
(5)
No fee is payable under section 354 (How to make
an application for costs assessment) for any such
application.
[6]Sections 537 (1) (c) and (2),
542 (1) (c), 559 (2) (b) and 571 (5) (b) (i)
Omit “section 540 (Summary conclusion of
complaint procedure by caution, reprimand or compensation order)”
wherever occurring.
Insert instead “section 540 (Summary
conclusion of complaint procedure by caution, reprimand, compensation order or
imposition of conditions)”.
[7]Section 540 Summary conclusion
of complaint procedure by caution, reprimand, compensation order or imposition
of conditions
Insert after section 540 (2) (c):
(d)
determine that a specified condition be imposed
on the practitioner’s practising
certificate.
[8]Section 540
(5)
Insert “or that a condition be imposed on
an Australian legal practitioner’s practising certificate under this
section,” after “this section,”.
[9]Section 540
(6)
Insert after section 540 (5) after the
note:
(6)
If the Commissioner determines that a specified
condition be imposed on a practising certificate, the appropriate Council is
required to impose and maintain the condition. The condition may be amended,
suspended, reinstated or revoked with the concurrence of the
Commissioner.
[10]Section 570 Request by
complainant for compensation order
Omit section 570 (1). Insert instead:
(1)
A complainant may request a compensation order in
respect of loss suffered by:
(a)
the complainant, or
(b)
another person who is a client of the law
practice to which the Australian legal practitioner concerned
belongs,
(or both) because of the conduct the subject of the
complaint. The complainant, or other person, suffering the loss is referred to
in this Part as an aggrieved
person.
[11]Section 570
(2)
Omit “the complainant”. Insert
instead “the aggrieved person”.
[12]Section 571 Compensation
orders
Omit “complainant” from section 571
(1) and (2) wherever occurring.
Insert instead “aggrieved
person”.
[13]Section 572 Prerequisites to
making of compensation orders
Omit “complainant” from section 572
(1) (a).
Insert instead “aggrieved
person”.
[14]Section 572
(2)
Omit “complainant”. Insert instead
“aggrieved person”.
[15]Section 573 Making of
compensation orders
Insert “539 or” after
“section” in section 573 (3) (a) (i).
[16]Section 573
(7)
Insert after section 573 (6):
(7)
A compensation order may specify the person to
whom monetary compensation is payable, whether to the aggrieved person or to
another person on behalf of the aggrieved person.
[17]Section 575 Other remedies not
affected
Omit “a complainant”. Insert instead
“an aggrieved person”.
[18]Section
575
Omit “the complainant”. Insert
instead “the aggrieved person”.
[19]Section
599
Insert after section 598:
599Conditions imposed under this
Chapter
Any requirements of Chapter 2 (General
requirements for engaging in legal practice) relating to the imposition of
conditions do not apply to conditions imposed under this
Chapter.
Schedule 5Amendment of Chapter 5 of
Legal Profession Act
2004
(Section 3)
[1]Section 615 Circumstances
warranting external intervention
Omit “law practice” from section 615
(d). Insert instead “practice”.
[2]Section 653 Reports by
external intervener
Omit “authority” from section 653
(3).
Insert instead “Law Society
Council”.
Schedule 6Amendment of Chapter 7 of
Legal Profession Act
2004
(Section 3)
[1]Section 688 Functions of
Commissioner
Omit “issue” from section 688 (1)
(j). Insert instead “grant”.
[2]Section 689 Commissioner may
require Councils to provide information
Omit “issue” wherever occurring in
section 689 (1) (d).
Insert instead
“grant”.
[3]Section
689A
Insert after section 689:
689AFunctions of Commissioner in
relation to advertising offences
(1)
In addition to the Commissioner’s other
functions, the Commissioner may institute prosecutions for an offence against
section 85 (Regulation of advertising and other marketing of services) or
regulations made under that section.
(2)
If the Commissioner suspects on reasonable
grounds that a person (whether or not an Australian lawyer) may have committed
an offence against section 85 or regulations made under that section, the
Commissioner or a person authorised by the Commissioner may conduct an
investigation in relation to the matter.
(3)
The Commissioner or authorised person has and may
exercise, in relation to the matter referred to in subsection (2), the same
powers as an investigator has under Chapter 6 (Provisions relating to
investigations) in relation to a matter that is the subject of a complaint
under Chapter 4 (Complaints and discipline).
(4)
Accordingly, the provisions of Chapter 6 apply in
relation to the matter referred to in subsection (2), and so apply with any
necessary modifications and as if a reference to an Australian lawyer included
a reference to a lay person.
(5)
This section does not limit any powers that may
be exercised apart from this section by the Commissioner or by any other
person.
[4]Section 696 Functions of Bar
Council
Omit “or to an officer of the Bar
Council” from section 696 (2).
Insert instead “, to an officer of the Bar
Council or to an employee of the Bar
Association”.
[5]Section 696 (3)
(a)
Omit the paragraph. Insert instead:
(a)
a person to whom Chapter 4 (Complaints and
discipline) applies, other than an Australian legal practitioner who is, or
was at the relevant time, a solicitor, or
[6]Section 696
(4)
Insert after section 696 (3):
(4)
Without limiting any other provision of this
section, the Bar Council may investigate and bring proceedings for a breach of
Part 2.2 by any person, including a lay person.
[7]Section 699 Functions of Law
Society Council
Omit “or to an officer of the Law Society
Council” from section 699 (3).
Insert instead “, to an officer of the Law
Society Council or to an employee of the Law
Society”.
[8]Section 699 (4)
(a)
Omit the paragraph. Insert instead:
(a)
a person to whom Chapter 4 (Complaints and
discipline) applies, other than an Australian legal practitioner who is, or
was at the relevant time, entitled to engage in legal practice only as or in
the manner of a barrister, or
[9]Section 699
(5)
Insert after section 699 (4):
(5)
Without limiting any other provision of this
section, the Law Society Council may investigate and bring proceedings for a
breach of Part 2.2 by any person, including a lay
person.
[10]Section 701
Purpose
Omit “locally registered foreign
lawyers”.
Insert instead “Australian-registered
foreign lawyers”.
[11]Section 702 Rules for
barristers
Omit “practice” from section 702
(1).
Insert instead “engaging in legal
practice”.
[12]Section 702
(2)
Omit the subsection. Insert instead:
(2)
The Bar Council may make rules for or with
respect to engaging in legal practice as an Australian-registered foreign
lawyer who engages in legal practice only as or in the manner of a
barrister.
[13]Section 703 Rules for
solicitors
Omit “practice” from section 703
(1).
Insert instead “engaging in legal
practice”.
[14]Section 703
(2)
Omit the subsection. Insert instead:
(2)
The Law Society Council may make rules for or
with respect to engaging in legal practice as an Australian-registered foreign
lawyer who engages in legal practice as or in the manner of a
solicitor.
[15]Section 706 Subject-matter of
legal profession rules
Omit “locally registered foreign
lawyers” from section 706 (1).
Insert instead “Australian-registered
foreign lawyers”.
[16]Section 711 Binding nature of
legal profession rules
Omit “locally registered foreign
lawyers” from section 711 (1).
Insert instead “Australian-registered
foreign lawyers”.
Schedule 7Amendment of Chapter 8 of
Legal Profession Act
2004
(Section 3)
[1]Section 721 Disclosure of
information by local regulatory authorities
Insert after section 721 (2):
(2A)
The regulations may authorise a local regulatory
authority to disclose information to a person or body prescribed, or of a
class prescribed, by the regulations relating to or arising under this Act or
a corresponding law, subject to any limitations or restrictions specified in
the regulations.
[2]Section
722A
Insert after section 722:
722AProtection of applications for
referral for pro bono legal services
(1)
A protected person is not required to divulge or
produce to any person, court or tribunal (whether in response to a subpoena or
otherwise) any information or document received by a protected person in
connection with an application made by or on behalf of a person for a referral
for the provision of legal services on a pro bono basis.
(2)
This section has effect despite section 730A
(Duty to report suspected offences).
(3)
In this section:
protected
person means:
(a)
the Bar Association or Law Society,
or
(b)
a Council or a member of a Council,
or
(c)
a committee or member of a committee of the Bar
Association, Law Society or a Council, or
(d)
an Australian legal practitioner to whom a person
or body mentioned in a preceding paragraph of this definition gives any
information or document referred to in subsection (1) for the purpose of
advising such a person or body on the application, or
(e)
an employee or agent of, or a person acting at
the direction of, a person or body mentioned in a preceding paragraph of this
definition.
[3]Section 730A Duty to report
suspected offences
Insert after section 730A (3):
(4)
This section does not apply to:
(a)
offences against this Act or the Legal Profession Act 1987 or the
regulations under either Act, or
(b)
offences specified, or of a class or description
specified, by the regulations for the purposes of this
section.
[4]Section 738
Regulations
Insert “, unless another maximum penalty is
authorised by another provision of this Act to be included in relation to the
offence concerned” after “units” in section 738
(3).
Schedule 8Amendment of Schedule 9 to
Legal Profession Act
2004
(Section 3)
[1]Schedule 9 Savings,
transitional and other provisions
Insert at the end of clause 1 (1):
Legal Profession
Amendment Act 2006
[2]Schedule 9, clause 13
Multi-disciplinary partnerships
Omit “section 137 (Notice of intention to
start providing legal services)” from clause 13 (1).
Insert instead “section 167 (Notice of
intention to start practice in multi-disciplinary
partnership)”.
[3]Schedule 9, clause
17A
Insert after clause 17:
17AProceedings before Tribunal
instituted on or after 1 October 2005
(1)
Proceedings before the Tribunal that were
instituted on or after 1 October 2005 but before the commencement of this
clause in respect of a complaint about conduct occurring before 1 October 2005
are to be dealt with in accordance with:
(a)
this Act (including clauses 16 and 17 of this
Schedule), and
(b)
the Administrative
Decisions Tribunal Act 1997 (as in force on or after 1
October 2005),
except in so far as a direction of the President of the
Tribunal under this clause otherwise provides.
(2)
The President of the Tribunal may direct that the
proceedings be dealt with in accordance with:
(a)
the old Act, or
(b)
the old Act and this Act as regards different
aspects of the proceedings, as indicated in the
direction.
(3)
The President of the Tribunal may, for the
purposes of this clause, direct that the Tribunal be constituted as determined
by the President or the Divisional Head of the Legal Services Division, being
a determination that is consistent with requirements for the constitution of
the Division under the Administrative Decisions Tribunal Act
1997 at or at any time before the commencement of this
clause.
(4)
The President of the Tribunal may give any such
direction at any stage of the proceedings.
(5)
Any decisions of the Tribunal or directions of
the President of the Tribunal that:
(a)
were made or given before the commencement of
this clause, and
(b)
would have been valid had the Legal Profession Amendment Act 2006
(which inserted this clause and omitted clause 41 (2) (Pending proceedings) of
Schedule 5 (Savings and transitional provisions) to the Administrative Decisions Tribunal Act
1997) been in force at the relevant
time,
are taken to have been validly made or
given.
Note—
The purpose of clause 17A is to provide for
determining how disciplinary proceedings commenced in the Tribunal on or after
1 October 2005 but before the commencement of the clause are to be dealt
with.
Clauses 16 and 17 in effect provide that those
proceedings are to be dealt with substantially in accordance with this Act.
However, clause 41 (2) of Schedule 5 to the Administrative
Decisions Tribunal Act 1997 in effect provided that those
proceedings are to be initiated and dealt with in accordance with the Legal Profession Act 1987 and in
accordance with the Administrative Decisions Tribunal Act
1997 as in force before the commencement of clause 41.
Clause 41 (2) was repealed by the Legal Profession
Amendment Act 2006.
Clause 17A provides that the proceedings are to
be dealt with in accordance with this Act and the Administrative Decisions Tribunal Act
1997 as currently in force, subject to any directions that
the President is authorised to give under the clause.
[4]Schedule 9, clauses 22 and
22A
Omit clause 22. Insert instead:
22Pending appeals or
reviews
(1)
An appeal or review that was pending under or in
relation to any matter under the old Act immediately before 1 October 2005 is
to be dealt with as if this Act had not been enacted, except in so far as a
direction of the Supreme Court or the President of the Tribunal, as the case
requires, under this clause otherwise provides.
(2)
The Supreme Court or the President of the
Tribunal, as the case requires, may direct that the appeal or review
proceedings be dealt with in accordance with the provisions of:
(a)
this Act, or
(b)
the old Act and this Act as regards different
aspects of the proceedings, as indicated in the
direction.
Those provisions apply accordingly, and so apply
with any necessary adaptations.
(3)
The President of the Tribunal may, for the
purposes of this clause, direct that the Tribunal be constituted as determined
by the President or the Divisional Head of the Legal Services Division, being
a determination that is consistent with requirements for the constitution of
the Division under the Administrative Decisions Tribunal Act
1997 at or at any time before the commencement of this
clause.
(4)
The Supreme Court or the President of the
Tribunal, as the case requires, may give any such direction at any stage of
the proceedings.
(5)
The Supreme Court or the Tribunal, as the case
requires, may make orders declaring how the decision on the appeal or review
is to have effect in relation to the provisions of this
Act.
(6)
Any decisions of the Supreme Court or the
Tribunal or directions of the Supreme Court or the President of the Tribunal
that:
(a)
were made or given before the commencement of
this clause, and
(b)
would have been valid had the Legal Profession Amendment Act 2006
(which substituted this clause) been in force at the relevant
time,
are taken to have been validly made or
given.
22ANew appeals or reviews about
old matters
(1)
A matter arising under the old Act may be the
subject of an appeal or review made or applied for on or after 1 October 2005
if the appeal or review could have been made or applied for had this Act not
been enacted.
(2)
The appeal or review may be made or applied for
under the provisions of either the old Act or this Act (even if the matter
could not otherwise be the subject of appeal or review under this Act if the
matter had arisen on or after 1 October 2005).
(3)
The appeal or review may be dealt with under this
Act (even if the matter could not otherwise be the subject of appeal or review
under this Act if the matter had arisen after 1 October 2005), except in so
far as a direction of the Supreme Court or the President of the Tribunal, as
the case requires, under this clause otherwise provides.
(4)
The Supreme Court or the President of the
Tribunal, as the case requires, may direct that the appeal or review
proceedings be dealt with in accordance with the provisions of:
(a)
the old Act, or
(b)
the old Act and this Act as regards different
aspects of the proceedings, as indicated in the
direction.
Those provisions apply accordingly, and so apply
with any necessary adaptations.
(5)
The President of the Tribunal may, for the
purposes of this clause, direct that the Tribunal be constituted as determined
by the President or the Divisional Head of the Legal Services Division, being
a determination that is consistent with requirements for the constitution of
the Division under the Administrative Decisions Tribunal Act
1997 at or at any time before the commencement of this
clause.
(6)
The President may give any such direction at any
stage of the proceedings.
(7)
The Supreme Court or the Tribunal, as the case
requires, may make orders declaring how the decision on the appeal or review
is to have effect in relation to the provisions of this
Act.
(8)
Any decisions of the Supreme Court or the
Tribunal or directions of the Supreme Court or the President of the Tribunal
that:
(a)
were made or given before the commencement of
this clause, and
(b)
would have been valid had the Legal Profession Amendment Act 2006
(which inserted this clause) been in force at the relevant
time,
are taken to have been validly made or
given.
[5]Schedule 9, clauses
28–30
Insert after clause 27:
28Existing solicitor
corporations
(1)
This clause applies to a solicitor corporation
that was formed under Division 1 of Part 10A of the old Act and that was in
existence immediately before the repeal of that Part by the Legal Profession Amendment (Incorporated Legal Practices)
Act 2000.
(2)
Any such solicitor corporation in existence
immediately before 1 October 2005 is taken for all purposes to have continued
in existence on and from that date, and Part 10A of the old Act continues to
apply to the solicitor corporation (despite its repeal), until:
(a)
the registration of the corporation as a company
under the Corporations Act 2001 of the
Commonwealth, or
(b)
the winding up of the corporation in accordance
with that Part or with the regulations made under this
Schedule.
(3)
Any such regulations may apply provisions of the
Corporations Act 2001 of the
Commonwealth or any other Act, with or without
modification.
(4)
Solicitor corporations are taken to be, and to
have been on and after 1 October 2005, law practices within the meaning of
this Act. The regulations may modify the operation of this Act in relation to
solicitor corporations.
(5)
The transfer, in accordance with the Corporations
Act 2001 of the Commonwealth, of the incorporation of any
such solicitor corporation to incorporation under that Act is
authorised.
29Solicitor corporation becoming
company
(1)
This clause applies to a corporation that is
registered as a company under the Corporations Act
2001 of the Commonwealth and that immediately before its
registration as such a company was a solicitor corporation to which clause 28
applied.
(2)
The corporation:
(a)
ceases to be a solicitor corporation when it is
registered as a company under the Corporations Act
2001 of the Commonwealth, and
(b)
becomes an incorporated legal practice (subject
to and in accordance with section 134 of this Act and any other relevant
provisions of Part 2.6 of this Act).
(3)
Part 10A of the old Act ceases to apply to the
corporation.
(4)
The corporation must, within the period of 7 days
commencing with the day on which the corporation becomes registered as a
company, give:
(a)
the Law Society Council, and
(b)
the Commissioner for Fair Trading in the
Department of Commerce or (if that position does not exist) the
Director-General of the Department of Commerce,
a written notice of that fact.
Maximum penalty: 50 penalty
units.
(5)
Sections 137 and 138 do not apply, and are taken
not to have applied, to the corporation if it gives the Law Society Council
the notice referred to in subclause (4) within the required period and in the
approved form.
30Costs in criminal
matters
(1)
Section 353 (3) (Application for assessment of
party/party costs) does not affect, and is taken never to have affected, rules
of court, or the power to make rules of court, under section 253 (Court may
order payment of costs) of the Criminal
Procedure Act 1986 in connection with criminal proceedings
in any court.
(2)
The Land and Environment Court Rules
(Amendment No 16) 2005 (the amending
Rules) are taken to have been validly
made.
(3)
References in Division 3 of Part 16 of the
Land and Environment Court Rules
1996 as inserted by the amending Rules to provisions of
the old Act are taken to include references to the corresponding provisions of
this Act.
31Qualifications of members of
Medical Board and Mental Health Review Tribunal
Despite clause 26, an amendment made by Schedule
9.11 or 9.12 [1], [2] or [5] to the Legal Profession
Amendment Act 2006 is taken to have effect on and from the
commencement day.
Schedule 9Amendment of other
Acts
(Section 4)
9.1Aboriginal Land Rights Act 1983 No
42
Section 179 Constitution of
Pecuniary Interest Tribunal
Omit “a barrister or solicitor” from
section 179 (1).
Insert instead “an Australian legal
practitioner”.
9.2Administrative Decisions Tribunal Act 1997 No
76
Schedule 5 Savings and
transitional provisions
Omit clause 41 (2).
9.3Architects Act 2003 No
89
Sections 45 (3) and 60 (2)
(d)
Omit “a legal practitioner” wherever
occurring.
Insert instead “an Australian legal
practitioner”.
9.4Casino
Control Act 1992 No 15
Sections 23 (7), 59 (7), 135
(2) (b) and 143A (1) (b)
Omit “a legal practitioner” wherever
occurring.
Insert instead “an Australian
lawyer”.
9.5Chiropractors Act 2001 No
15
[1]Section 87 Membership of the
Board
Omit “legal practitioner” from
section 87 (2) (f).
Insert instead “Australian
lawyer”.
[2]Section 100 Chairperson and
Deputy Chairpersons of the Tribunal
Omit “a legal practitioner” from
section 100 (1).
Insert instead “an Australian
lawyer”.
[3]Section 100
(1)
Omit “legal practitioners”. Insert
instead “Australian lawyers”.
9.6Health
Services Act 1997 No 154
Section 108 Constitution of
Committee of Review
Omit “a legal practitioner” from
section 108 (2) (a).
Insert instead “an Australian
lawyer”.
9.7Judicial Officers Act 1986 No
100
Section 5 The
Commission
Omit “a legal practitioner” from
section 5 (5) (a).
Insert instead “an Australian legal
practitioner”.
9.8Law
and Justice Foundation Act 2000 No
97
Schedule 1 Constitution and
procedure of Board
Omit “a legal practitioner” wherever
occurring in clause 2 (2) (c) and (d) and (4).
Insert instead “an Australian legal
practitioner”.
9.9Law
Reform Commission Act 1967 No 39
Section 3 Constitution of the
Commission
Omit “a lawyer” from section 3 (3)
(b).
Insert instead “an Australian legal
practitioner”.
9.10Local
Government Act 1993 No 30
Section 488 Constitution of
Pecuniary Interest and Disciplinary Tribunal
Omit “a barrister or solicitor” from
section 488 (1).
Insert instead “an Australian
lawyer”.
9.11Medical Practice Act 1992 No
94
Section 130
Membership
Omit “a barrister or solicitor” from
section 130 (2) (b).
Insert instead “an Australian
lawyer”.
9.12Mental
Health Act 1990 No 9
[1]Section 253 Additional
provisions relating to members
Omit “barristers and solicitors” from
section 253 (1) (a).
Insert instead “Australian
lawyers”.
[2]Section 264 Composition of the
Tribunal generally
Omit “a barrister or solicitor” from
264 (a).
Insert instead “an Australian
lawyer”.
[3]Section 264
(c)
Omit “a barrister, solicitor”. Insert
instead “an Australian lawyer”.
[4]Section 265 Composition of the
Tribunal for dealing with forensic patients
Omit “a psychiatrist or a barrister or
solicitor” from section 265 (c).
Insert instead “an Australian lawyer or a
psychiatrist”.
[5]Section 270 Chairperson and
votes of members
Omit “a barrister or solicitor, as the case
may be,” from section 270 (a).
Insert instead “an Australian
lawyer”.
[6]Schedule 4, clause 1 (2) (a)
and Schedule 6, clause 1 (1)
Omit “a legal practitioner” wherever
occurring.
Insert instead “an Australian
lawyer”.
[7]Schedule 6 Provisions relating
to members of the Tribunal
Omit “a barrister or a solicitor”
from clause 1 (2).
Insert instead “an Australian legal
practitioner”.
Schedule 10Amendment of Legal Profession Regulation
2005
(Section 5)
[1]Clause 24 Restriction on
advertising personal injury services
Omit “100 penalty units” from clause
24 (1).
Insert instead “200 penalty
units”.
[2]Clause 34 Restrictions on
personal injury advertisements
Omit “100 penalty units” wherever
occurring.
Insert instead “200 penalty
units”.
[3]Clause
110A
Omit the clause. Insert instead:
110AInterest on unpaid legal
costs—section 321 (4) (b) of the Act
(1)
This clause is made for the purposes of section
321 (4) (b) of the Act and prescribes the rate of interest in excess of which
a law practice may not charge interest under section 321 of the Act or under a
costs agreement.
(2)
The rate for the period commencing with 1 October
2005 and ending immediately before the date of commencement of subclause (3)
is 9%.
(3)
The rate for the period commencing with the date
of commencement of this subclause is the rate that is equal to the Cash Rate
Target as at the relevant date, increased by 2 percentage
points.
(4)
In this clause:
Cash Rate
Target means the percentage (or maximum percentage)
specified by the Reserve Bank of Australia as the Cash Rate
Target.
relevant
date means the date the bill was issued by the law practice
concerned.
Historical
notes
Table of amending
instruments
Legal Profession
Amendment Act 2006 No 30. Second reading speech made:
Legislative Assembly, 5.4.2006; Legislative Council, 23.5.2006. Assented to
26.5.2006. Date of commencement, except Sch 10 [3], 2.6.2006, sec 2 and GG No
72 of 2.6.2006, p 3730; date of commencement of Sch 10 [3], 1.7.2006, sec 2
and GG No 72 of 2.6.2006, p 3730.