Div 2AAmendment, suspension or cancellation of practising certificates

Division 2A—Amendment, suspension or cancellation of practising certificates 20AB—Application of Division This Division does not apply in relation to matters referred to in Division 2B. 20AC—Grounds for amending, suspending or cancelling practising certificate Each of the following is a ground for amending, suspending or cancelling a practising certificate: (a) the holder of the certificate is not a fit and proper person to hold the certificate; (b) if a condition of the certificate is that the holder of the certificate is or has been limited to legal practice specified in the certificate—the holder of the certificate is engaging in legal practice that the holder is not entitled to engage in under this Act. Such conditions could be imposed under section 17A(1)(b) or by the Commissioner or the Tribunal under Part 6. A particular category of certificate may also limit the holder of the certificate to specified legal practice. 20AD—Amending, suspending or cancelling practising certificates (1) The Supreme Court may, on the application of the Attorney‑General, the Society or the Commissioner, make an order amending, suspending or cancelling a practising certificate if the Court considers that a ground exists for the amendment, suspension or cancellation. (2) An application under this section— (a) must be served on the holder of the certificate in accordance with the rules of the Supreme Court; and (b) must— (i) specify the order sought by the applicant (including details of any amendment or suspension period proposed in the application); and (ii) state the ground for seeking the proposed order; and (iii) invite the holder to make written representations to the Court, within a time specified by the Court of not less than 7 days and not more than 28 days, as to why the order should not be made. (3) If, after considering all written representations made within the specified time and, in its discretion, written representations made after the specified time, the Supreme Court considers that a ground exists to— (a) make an order amending, suspending or cancelling the certificate as proposed in the application; or (b) make an order for the amendment or suspension of the certificate that is less onerous than the order proposed in the application, the Court may make the order. (4) If the Supreme Court makes an order amending, suspending or cancelling the practising certificate, the Court must give the holder a written notice about the order setting out— (a) the terms of the order; and (b) the reasons for the order. Under some provisions of this Act, a practising certificate is taken to be suspended by force of the provision. See, for example, section 19(1) and Schedule 1 clause 12(2). This section does not derogate from the power of LPEAC to cancel a practising certificate under section 17A. 20AE—Operation of amendment, suspension or cancellation of practising certificate (1) This section applies if an order is made to amend, suspend or cancel a practising certificate under section 20AD. (2) Subject to subsections (3) and (4), the amendment, suspension or cancellation of the practising certificate takes effect on the later of the following: (a) the day notice of the order is given to the holder of the certificate; (b) the day specified in the notice. (3) If the practising certificate is amended, suspended or cancelled because the holder of the certificate has been convicted of an offence— (a) the Supreme Court may, on the application of the holder, order that the operation of the amendment, suspension or cancellation of the practising certificate be stayed until— (i) the end of the time to appeal against the conviction; and (ii) if an appeal is made against the conviction—the appeal is finally decided, lapses or otherwise ends; and (b) the amendment, suspension or cancellation does not have effect during any period in respect of which the stay is in force. (4) If the practising certificate is amended, suspended or cancelled because the holder has been convicted of an offence and the conviction is quashed— (a) the amendment or suspension ceases to have effect when the conviction is quashed; or (b) the cancellation ceases to have effect when the conviction is quashed and the certificate is restored as if it had merely been suspended. 20AF—Revocation of amendment, suspension or cancellation of practising certificate (1) The holder of a practising certificate that has been amended, suspended or cancelled under section 20AD may make written representations to the Registrar of the Supreme Court about the amendment, suspension or cancellation and the Court must consider the representations. (2) The Supreme Court may revoke the amendment, suspension or cancellation at any time, whether or not in response to any written representations made to it by the holder. Division 2B—Special powers in relation to practising certificates—show cause events 20AG—Applicant for practising certificate—show cause event (1) This section applies if— (a) a person is applying for a practising certificate; and (b) a show cause event in relation to the person happened, whether before or after the commencement of this section, after the person was first admitted to the legal profession in this or another jurisdiction (however the admission was expressed at the time of the admission). (2) As part of the application, the person must provide to the Supreme Court a written statement, in accordance with any prescribed requirements— (a) setting out particulars of the show cause event; and (b) explaining why, despite the show cause event, the applicant considers himself or herself to be a fit and proper person to hold a practising certificate. (3) However, the applicant need not provide a statement under subsection (2) if the person (as a previous applicant for a practising certificate or as the holder of a practising certificate previously in force) has previously provided to the Supreme Court— (a) a statement under this section; or (b) a notice and statement under section 20AH, explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to hold a practising certificate. (4) A notice or written statement provided to the Supreme Court under this section must be served by the applicant on the Commissioner and the Society, each of whom may make written representations to the Court in relation to the holder of the practising certificate within the time, and in accordance with the procedure, prescribed by rules of the Court. 20AH—Holder of practising certificate—show cause event (1) This section applies to a show cause event that happens in relation to the holder of a practising certificate. (2) The holder must provide to the Supreme Court both of the following: (a) within 7 days after the happening of the event—notice, in the form approved by the Court, that the event happened; (b) within 28 days after the happening of the event—a written statement explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to hold a practising certificate. (3) If a written statement is provided after the 28 days mentioned in subsection (2)(b), the Supreme Court may accept the statement and take it into consideration. (4) A notice and written statement provided to the Supreme Court under this section must be served by the holder on the Commissioner and the Society, each of whom may make written representations to the Court in relation to the holder of the practising certificate within the time, and in accordance with the procedure, prescribed by rules of the Court. 20AI—Refusal, amendment, suspension or cancellation of practising certificate—failure to show cause (1) The Supreme Court may refuse to issue or renew, or may amend, suspend or cancel, a practising certificate if the applicant or holder— (a) is required by section 20AG or 20AH to provide a written statement relating to a matter and has failed to provide a written statement in accordance with that requirement; or (b) has provided a written statement in accordance with section 20AG or 20AH but the Court does not consider that the applicant or holder has shown in the statement that, despite the show cause event concerned, he or she is a fit and proper person to hold a practising certificate. (1a) If an applicant for, or holder of, a practising certificate has provided a written statement in accordance with section 20AG or 20AH, the Supreme Court may make an order imposing conditions on the practising certificate— (a) relating to the legal practice of the applicant or holder; or (b) requiring that the applicant or holder, within a specified time, complete further education or training, or receive counselling, of a specified type. (2) For the purposes of this section only, a written statement accepted by the Supreme Court under section 20AH(3) is taken to have been provided in accordance with section 20AH. (3) If the Supreme Court makes a determination under this section, the Court must, as soon as practicable, give the applicant or holder written notice of the determination. Division 2C—Further provisions relating to practising certificates 20AJ—Immediate suspension of practising certificate (1) This section applies, despite Division 2A and Division 2B, if the Supreme Court considers, on application by the Attorney‑General, the Society or the Commissioner, or on the Court's own initiative, that it is necessary in the public interest to immediately suspend a practising certificate on— (a) any of the grounds on which the certificate could be suspended or cancelled under Division 2A; or (b) the ground of the happening of a show cause event in relation to the holder; or (c) any other ground that the Court considers warrants suspension of the certificate in the public interest, whether or not any action has been taken or commenced under Division 2A or Division 2B in relation to the holder. (2) The Supreme Court may, by written notice given to the holder, immediately suspend the practising certificate until the earlier of the following: (a) the time at which the Court informs the holder of the Court's decision by notice under section 20AD; (b) the end of the period of 56 days after the notice is given to the holder under this section. (3) The notice under this section must— (a) include a statement of— (i) the decision to suspend the practising certificate; and (ii) the reasons for the decision; and (b) state that the practitioner may make written representations to the Supreme Court about the suspension. (4) The holder may make written representations to the Supreme Court about the suspension, and the Court must consider the representations. (5) The Supreme Court may revoke the suspension at any time, whether or not in response to any written representations made to it by the holder. 20AK—Surrender and cancellation of practising certificate (1) The holder of a practising certificate may surrender the certificate to the Supreme Court. (2) The Supreme Court may cancel the certificate. Division 3—Entitlement to practise etc 21—Entitlement to practise (1) A natural person must not practise the profession of the law, or hold himself or herself out, or permit another to hold him or her out, as being entitled to practise the profession of the law unless the person— (a) is a local legal practitioner; or (b) is an interstate legal practitioner. (2) Without limiting the generality of subsection (1), but subject to subsection (3), a person practises the profession of the law, if acting for fee or reward on behalf of some other person he or she— (a) prepares any will or other testamentary instrument; or (b) prepares an instrument creating, transferring, assigning, modifying or extinguishing any estate or interest in real or personal property; or (c) prepares any instrument relating to the formation of a body corporate, any amendment to the constitution, rules or regulations of a body corporate, any prospectus or take-over scheme relating to a body corporate, or any instrument affecting the rights of shareholders or debenture holders in a body corporate or any scheme of arrangement in respect of a body corporate; or (d) prepares any other instrument creating, transferring, assigning, modifying or extinguishing any right, power or liability at law or in equity; or (e) represents any party to proceedings in a court or tribunal. (3) This section does not prevent— (a) an employee whose employer is a party to an instrument or otherwise entitled to prepare an instrument and who is acting in the ordinary course of employment from preparing the instrument provided that no separate charge is made by the employer or the employee for the preparation of the instrument; or (b) an unqualified person from charging a fee for the preparation of a bill of sale, stock mortgage or lien over wool or fruit to which the person is the party in whose favour the security is given or an instrument varying or discharging a bill of sale, stock mortgage or lien over wool or fruit to which the person is such a party; or (c) an unqualified person from charging a fee for the preparation of a mortgage over land to which the person is the party in whose favour the security is given, or an instrument varying or discharging a mortgage over land to which the person is such a party, provided that the mortgage or other instrument is prepared by a legal practitioner or conveyancer registered under the Conveyancers Act 1994; or (d) an unqualified person from charging a fee for the preparation of an instrument provided that— (i) the instrument is prepared by a legal practitioner in the employment of that unqualified person; and (ii) the legal practitioner has been in the employment of that unqualified person continuously since 1 July, 1980; or (da) an unqualified person from reproducing, or completing the standard variables of, a pro forma loan instrument for fee or reward for an ADI or other commercial lending institution provided that— (i) the substantive terms and conditions of the loan instrument are modified only by the parties or a legal practitioner or, where authorised by this or any other Act, by a conveyancer registered under the Conveyancers Act 1994; and (ii) the pro forma loan instrument is an approved Lands Titles Office document or has been prepared by a legal practitioner or, where authorised by this or any other Act, by a conveyancer registered under the Conveyancers Act 1994; or (e) an agent who has been commissioned to sell goods or let them out on hire, or to contract for the performance of services from preparing a contract for the sale or hire of goods or the provision of services provided that the agent is remunerated only by salary or commission and no separate charge is made by the agent or the principal for the preparation of the contract; or (f) an unqualified person from engrossing an instrument for fee or reward; or (g) an unqualified person from representing a party to proceedings in a court or tribunal for fee or reward, if the person is authorised by or under the Act by which the court or tribunal is constituted, or any other Act, to do so; or (i) an unqualified person who is an employee or officer of an association of employers or employees from representing the association or any of its members in proceedings brought pursuant to an Act relating to industrial conciliation or arbitration provided that the unqualified person (as distinct from the association of which the person is an employee or officer) makes no charge for providing the representation; or (j) an unqualified person who is an employee of a body corporate that is a party to proceedings brought pursuant to an Act relating to industrial conciliation or arbitration from representing the body corporate in the proceedings; or (k) an unqualified person who was on 2 March, 1981, carrying on the business of representing parties to proceedings brought pursuant to an Act relating to industrial conciliation and arbitration from continuing to carry on that business; or (l) an unqualified person from preparing, for fee or reward, any instrument relating to the transfer of shares or securities issued, or made available, by a body corporate; or (m) an agent registered under the Land Agents Act 1994 from preparing an instrument (other than an instrument registrable under the Real Property Act 1886) relating to the sale and purchase of any land or business that the agent has been commissioned to sell or buy, provided that the instrument is prepared by the agent personally or by a sales representative lawfully employed by the agent and no charge (apart from the commission payable to the agent in respect of the transaction) is made for the preparation of the instrument; or (n) an agent registered under the Land Agents Act 1994 from preparing for fee or reward— (i) a tenancy agreement relating to residential premises— (A) under which a rental not exceeding a maximum prescribed for the purposes of this subparagraph is payable; or (B) in respect of which the agent has approved professional indemnity insurance; or (ii) a tenancy agreement relating to non-residential premises arising from a transaction in respect of which the agent has acted as agent— (A) under which a rental not exceeding a maximum prescribed for the purposes of this subparagraph is payable; or (B) in respect of which the agent has approved professional indemnity insurance, provided that the instrument is prepared by the agent personally or by a sales representative lawfully employed by the agent; or (o) a conveyancer registered under the Conveyancers Act 1994 from preparing for fee or reward— (i) an instrument registrable under the Real Property Act 1886, the Community Titles Act 1996 or the Strata Titles Act 1988; or (ii) an instrument that creates or records a bill of sale, stock mortgage or lien over wool or fruit; or (p) a conveyancer registered under the Conveyancers Act 1994 from preparing for fee or reward— (i) a contract for the sale and purchase of land or a business; (ii) a tenancy agreement; (iii) an assignment of the benefit of a contract for the sale and purchase of land or a business or of a tenancy agreement; (iv) an instrument that arises from, and is incidental to, a contract, agreement or assignment of the kind mentioned in subparagraph (i), (ii) or (iii); or (q) an agent registered under the Land Agents Act 1994, being the employer of a legal practitioner or conveyancer registered under the Conveyancers Act 1994 from charging a fee for the preparation of an instrument of a kind mentioned in paragraph (o) or (p) where— (i) the instrument is prepared by the legal practitioner or conveyancer; and (ii) the agent is authorised by the Land and Business (Sale and Conveyancing) Act 1994 to charge a fee for the preparation by the legal practitioner or conveyancer of instruments registrable under the Real Property Act 1886; or (r) a notary public admitted and enrolled under the Notaries Public Act 2016 acting in the ordinary course of business from preparing an instrument for fee or reward; or (s) an officer or employee of a body corporate authorised by a special Act of Parliament of this State to administer the estates of deceased persons from preparing a will or other testamentary instrument for fee or reward provided that, if the body corporate or a related body corporate (within the meaning of the Corporations Act 2001 of the Commonwealth) is to be named as the executor, or one of the executors, of the will or instrument, any commission or other remuneration that will, or might, become payable in consequence of that appointment must be disclosed to the person on whose instructions the will or instrument is to be prepared; or (sa) an officer or employee of a trustee company from providing for fee or reward traditional trustee company services (within the meaning of Chapter 5D of the Corporations Act 2001 of the Commonwealth); or (u) an unqualified person from serving any process for fee or reward where the person is authorised or permitted by statute to do so; or (v) a clerk employed by a legal practitioner from serving any process for fee or reward; or (w) the preparation for fee or reward of an opinion on a question of law by a member of the faculty of law of a university provided that the opinion is prepared at the request of a legal practitioner, the Attorney-General of the State or of the Commonwealth, the Crown Solicitor or the Australian Government Solicitor or the Director of Public Prosecutions; or (x) the preparation for fee or reward of any prescribed instrument or the performance for fee or reward of any prescribed service. (3a) Subsection (1) does not apply to the practice of foreign law by an Australian-registered foreign lawyer in accordance with Schedule 1A. (4) For the purposes of this Act— (a) a person practises the profession of the law, or holds himself or herself out as entitled to practise the profession of the law, if the person does so personally, or through the agency or instrumentality of some other person; (b) a person acts for fee or reward if the person acts for, or in expectation of, a pecuniary benefit or material advantage; (ba) a person prepares an instrument if the person takes instructions for the preparation of such an instrument; (c) a person represents a party to proceedings before a court or tribunal if the person— (i) prepares, on behalf of that party, any legal process relating to the proceedings; or (ii) takes instructions from or gives advice to that party in relation to the conduct of the proceedings; or (iii) takes, on behalf of that party, any other step in the proceedings; (d) an employed legal practitioner who provides legal advice, or legal services of a kind mentioned in subsection (2), for or on behalf of his or her employer or clients of his or her employer practises the profession of the law. (4a) In proceedings for an offence against subsection (1), a certificate purporting to be signed by the Chief Executive and stating that a person is not a local legal practitioner or not an interstate legal practitioner is, in the absence of proof to the contrary, prima facie evidence of that fact. approved professional indemnity insurance means insurance— (a) that has been approved by the Attorney-General; or (b) that is of a class or kind that has been approved by the Attorney-General; business means a business as defined by the Land and Business (Sale and Conveyancing) Act 1994; loan instrument means a loan contract, mortgage, mortgage discharge, guarantee, or other instrument arising from, or incidental to, a loan transaction; member in relation to an association whose members include another association includes a member of that other association; tribunal includes a royal commission, the Independent Commission Against Corruption and an arbitrator who is a judge, special magistrate or legal practitioner; trustee company means a trustee company within the meaning of Chapter 5D of the Corporations Act 2001 of the Commonwealth. 22—Practising while under suspension etc If a legal practitioner— (a) practises the profession of the law, or holds him or herself out as being entitled to practise the profession of the law, while his or her right to do so is under suspension; or (b) contravenes or fails to comply with any conditions imposed on the practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate) by order of the Tribunal or the Supreme Court, 23—Unlawful representation (1) If any person (whether or not a legal practitioner) with a view to attracting business, falsely pretends to be the holder of any degree, diploma or certificate in law or adopts any style that leads reasonably to the false inference that the person holds any degree, diploma or certificate in law, the person is guilty of an offence. (2) If a person (whether or not a legal practitioner) holds out an unqualified person as being entitled to practise the profession of the law, the person is guilty of an offence. (3) If a legal practitioner— (a) permits or aids an unqualified person to practise the profession of the law, or acts in collusion with an unqualified person so as to enable that person to practise the profession of the law; or (b) enters into an agreement or an arrangement with an unqualified person under which the unqualified person is entitled to share in the profits arising from the practice of the law (otherwise than as permitted by this Act, or as may be authorised by the Society), (4) To avoid doubt, subsection (3)(b) does not apply to a legal practitioner who enters into an agreement or an arrangement with an Australian‑registered foreign lawyer under which the Australian‑registered foreign lawyer is entitled to share in the profits arising from the practice of foreign law in accordance with Schedule 1A. 23AA—Employment of disqualified person (1) Subject to this section, if a legal practitioner is a party to an agreement or arrangement to employ or engage, in connection with the practitioner's legal practice— (a) a person whose practising certificate is under suspension (whether a practising certificate under this Act or an interstate practising certificate); or (b) a person whose name has been struck off the roll of legal practitioners maintained under this Act or the roll kept in a participating State that corresponds to the roll maintained under this Act (unless the person has been re-admitted), (2) It is a defence to a charge of an offence under subsection (1) to prove that the defendant did not know, and could not reasonably be expected to have known, that the person's practising certificate was under suspension or that the person's name had been struck off a roll of legal practitioners. (3) On application, the Tribunal may authorise a legal practitioner to be a party to an agreement or arrangement of a kind referred to in subsection (1), subject to conditions (if any) specified by the Tribunal. (4) An application for such an authorisation may be made to the Tribunal by— (a) a legal practitioner; or (b) a person whose practising certificate is under suspension or whose name has been struck off a roll of legal practitioners. (5) The Tribunal may grant such an authorisation in its discretion but only if satisfied— (a) that the person to be employed or engaged will not practise the profession of the law; and (b) that granting the authorisation on the specified conditions (if any) is not likely to create a risk to the public. (6) For the purposes of a hearing of an application under this section, the Tribunal is constituted of a panel of three of its members chosen by the presiding member (one of whom may be the presiding member). (7) The Tribunal must give to the Commissioner, and to any person on whose application a hearing is to be held, not less than seven days written notice of the time and place at which it intends to conduct the hearing, and must afford the Commissioner, and any such person, a reasonable opportunity to call and give evidence, to examine witnesses, and to make submissions to the Tribunal. (8) Subject to this section, sections 80, 84, 84B, 85, 86 and 88 apply to a hearing of an application under this section in the same way as to proceedings before the Tribunal under Part 6. (9) Where an application is granted by the Tribunal, and the Tribunal or the Supreme Court is satisfied that an appeal against the authorisation has been instituted, or is intended, it may suspend the operation of the authorisation until the determination of the appeal. (10) Where the Tribunal has suspended the operation of an authorisation under subsection (9), the Tribunal may terminate the suspension, and where the Supreme Court has done so, the Supreme Court may terminate the suspension. (11) A legal practitioner must comply with any conditions imposed on an authorisation by the Tribunal or the Supreme Court. (12) A legal practitioner is not guilty of an offence against this section in relation to an agreement or arrangement to which the practitioner is a party at the commencement of this section if— (a) the agreement or arrangement is authorised under this section on an application made within 12 months after that commencement; and (b) the legal practitioner complies with any conditions imposed on the authorisation.