Subdiv 3Action following investigation

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