Part 1
Introduction
Part 1 Introduction
Part 1.1 Introduction
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New South Wales act
What this law does (mechanically)
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Part 1.1 Introduction
2 Commencement
This Law commences in a jurisdiction as provided by the Act of that jurisdiction that applies this Law as a law of that jurisdiction.
3 Objectives
The objectives of this Law are to promote the administration of justice and an efficient and effective Australian legal profession, by—
(a) providing and promoting interjurisdictional consistency in the law applying to the Australian legal profession; and
(b) ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and
(c) enhancing the protection of clients of law practices and the protection of the public generally; and
(d) empowering clients of law practices to make informed choices about the services they access and the costs involved; and
(e) promoting regulation of the legal profession that is efficient, effective, targeted and proportionate; and
(f) providing a co-regulatory framework within which an appropriate level of independence of the legal profession from the executive arm of government is maintained.
4 Extraterritorial operation of this Law
The operation of this Law is, as far as possible, to include operation, according to its terms, in relation to the following—
(a) things situated within or outside the territorial limits of this jurisdiction;
(b) acts, transactions and matters done, entered into or occurring within or outside the territorial limits of this jurisdiction;
(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction.
5 Jurisdictional arrangements
(1) The arrangements set out in this section have effect, and are to be observed, in relation to this Law.
(2) The host jurisdiction for this Law is Victoria.
(3) The host Attorney-General for this Law is the Attorney-General of Victoria.
(4) The host jurisdiction for the Council and the Commissioner is New South Wales.
(5) The host Attorney-General for the Council and the Commissioner is the Attorney-General of New South Wales.
(6) The primary office of the Council and the primary office of the Commissioner are to be located in New South Wales.
6 Definitions
(1) In this Law—
ADI means an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth;
admission or admission to the Australian legal profession means—
(a) admission by the Supreme Court of a participating jurisdiction as a lawyer (however expressed), whether before, on or after the commencement of this Law in that jurisdiction; or
(b) admission by the Supreme Court of a non-participating jurisdiction as a lawyer, a legal practitioner, a barrister, a solicitor, a barrister and solicitor, or a solicitor and barrister, whether before, on or after the commencement of this Law in any jurisdiction, otherwise than by the grant or issue of a practising certificate.
Without limiting the meaning of the terms admission or admission to the Australian legal profession, those terms include readmission;
Admission Rules means the provisions of the Uniform Rules that are designated as Admission Rules (see section 420);
Admissions Committee means the Admissions Committee established under section 402;
affairs of a law practice includes the following—
(a) all accounts and records required by or under this Law or the Uniform Rules to be maintained by the law practice or an associate or former associate of the law practice;
(b) other records of the law practice or an associate or former associate of the law practice;
(c) any transaction—
(i) to which the law practice or an associate or former associate of the law practice was or is a party; or
(ii) in which the law practice or an associate or former associate of the law practice has acted for a party;
another jurisdiction means a jurisdiction other than this jurisdiction;
another Supreme Court means the Supreme Court of another jurisdiction;
APRA means the Australian Prudential Regulation Authority;
ASIC means the Australian Securities and Investments Commission;
ASIC Act means the Australian Securities and Investments Commission Act 2001 of the Commonwealth;
associate of a law practice means a person who is one or more of the following—
(a) a principal of the law practice;
(b) a partner, director, officer, employee or agent of the law practice;
(c) an Australian legal practitioner who is a consultant to the law practice;
associated third party payer—see section 171;
Australian Accounting Standards means the standards issued by the Australian Accounting Standards Board;
Australian Bar Association means the association named The Australian Bar Association;
Australian financial services licence has the same meaning as it has in Chapter 7 of the Corporations Act;
Australian lawyer means a person admitted to the Australian legal profession in this jurisdiction or any other jurisdiction;
Australian legal practitioner means an Australian lawyer who holds a current Australian practising certificate;
Australian Legal Profession Register means the register referred to in section 432;
Australian practising certificate means—
(a) a practising certificate granted to an Australian lawyer under Part 3.3 of this Law as applied in a participating jurisdiction; or
(b) a practising certificate granted to an Australian lawyer under a law of a non-participating jurisdiction entitling the lawyer to engage in legal practice;
Australian-registered foreign lawyer means a person who holds a current Australian registration certificate;
Australian registration certificate means—
(a) a registration certificate granted to a foreign lawyer under Part 3.4 of this Law as applied in a participating jurisdiction; or
(b) a registration certificate granted to a foreign lawyer, or a document acknowledging the registration of a foreign lawyer, under a law of a non-participating jurisdiction entitling the lawyer to practise foreign law;
authorised ADI—see section 128;
authorised principal means a principal who is authorised by his or her Australian practising certificate to supervise others;
Note
Section 47(6) provides that an Australian practising certificate authorises the holder to supervise legal practice by others, unless the certificate is subject to a condition requiring the holder to engage in supervised legal practice or a condition to the effect that the holder may not supervise legal practice by others.
authorised representative has the same meaning as it has in Chapter 7 of the Corporations Act;
automatic show cause event—see section 86;
Bankruptcy Act means the Bankruptcy Act 1966 of the Commonwealth;
bankruptcy-related event, in relation to a person, means—
(a) his or her becoming bankrupt under the Bankruptcy Act (or the corresponding provisions of the law of a foreign country or external territory); or
(b) his or her being served with notice of a creditor’s petition presented to a court under section 43 of the Bankruptcy Act; or
(c) his or her presentation (as a debtor) of a declaration to the Official Receiver under section 54A of the Bankruptcy Act 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
(d) his or her applying to take the benefit of any law (whether Australian or otherwise) 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;
barrister means an Australian legal practitioner whose Australian practising certificate is subject to a condition that the holder is authorised to engage in legal practice as or in the manner of a barrister only;
business day means a day that is not a Saturday, Sunday, public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done;
certificate (in Part 3.5)—see section 73;
Chair of the Council—see clause 1 of Schedule 1;
Chapter 5 functions means—
(a) functions under Chapter 5; or
(b) functions under another provision of this Law relating to Chapter 5; or
(c) functions under the Uniform Rules relating to Chapter 5;
civil penalty and civil penalty provision—see section 452;
claim (in Part 4.5)—see section 219;
client includes a person to whom or for whom legal services are provided;
commercial or government client—see section 170;
Commissioner means the person appointed to or acting in the office of the Commissioner for Uniform Legal Services Regulation established by Part 8.3;
Commissioner of Police includes a person of equivalent status specified in jurisdictional legislation;
community legal service means an organisation (whether incorporated or not) that—
(a) holds itself out as—
(i) a community legal service; or
(ii) a community legal centre; or
(iii) an Aboriginal and Torres Strait Islander Legal Service;
whether or not it is a member of a State or Territory association of community legal centres, and whether or not it is accredited or certified by the National Association of Community Legal Centres; and
(b) is established and operated on a not-for-profit basis; and
(c) provides legal or legal-related services that—
(i) are directed generally to people who are disadvantaged (including but not limited to being financially disadvantaged) in accessing the legal system or in protecting their legal rights; or
(ii) are conducted in the public interest;
complaint—see section 265;
complaint investigation means an investigation of a complaint under section 282;
compliance audit means an audit under section 256;
compliance certificate means a certificate issued under section 19;
Note
Section 26(5) provides that, on a successful appeal against a refusal to issue a compliance certificate, the order of the Supreme Court may include a direction that the order has the same effect as a compliance certificate provided to the Court by the designated local regulatory authority.
concerted interjurisdictional default—see section 219;
conditional costs agreement—see section 181;
conditions includes terms, limitations and restrictions;
consumer matter—see section 269;
Continuing Professional Development Rules means the provisions of the Uniform Rules that are designated as Continuing Professional Development Rules (see section 420);
controlled money—see section 128;
conviction includes a finding of guilt, or the acceptance of a guilty plea by the court, whether or not a conviction is recorded;
corporate legal practitioner means an Australian legal practitioner who engages in legal practice only in the capacity of an in-house lawyer for his or her employer or a related entity, but does not include a government legal practitioner;
Corporations Act means the Corporations Act 2001 of the Commonwealth;
corresponding authority means—
(a) a person or body having functions under a corresponding law; or
(b) when used in the context of a person or body having functions under this Law in this jurisdiction—a person or body having corresponding functions under a corresponding law;
corresponding law means—
(a) a law of another jurisdiction that—
(i) corresponds to the relevant provisions of this Law as applied in this jurisdiction; or
(ii) is the principal legislation in the other jurisdiction for the regulation of the legal profession; or
(iii) is declared by the Uniform Regulations to be a law within this definition; but
(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;
costs assessment means an assessment of legal costs under Part 4.3;
costs assessor means—
(a) a person appointed by a court, judicial officer or other official to have the responsibility of conducting costs assessments; or
(b) a person or body designated by jurisdictional legislation to have that responsibility;
costs dispute—see section 269;
Council or Legal Services Council means the Legal Services Council established by Part 8.2;
default (in Part 4.5)—see section 219;
designated local regulatory authority means a person or body specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used;
designated local roll authority means a person or body specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used;
designated show cause event—see section 90;
designated tribunal means—
(a) a court or tribunal specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used; or
(b) a member or officer so specified or described of such a court or tribunal;
disqualified entity means an entity that is disqualified under section 120;
disqualified person means—
(a) a person whose name has been removed from a Supreme Court roll and who has not subsequently been admitted or readmitted by the Supreme Court of any jurisdiction; or
(b) a person who has been refused the grant or renewal of an Australian practising certificate and who has not been granted an Australian practising certificate at a later time; or
(c) a person whose Australian practising certificate is suspended (for the period of the suspension); or
(d) a person whose Australian practising certificate has been cancelled and who has not been granted an Australian practising certificate at a later time; or
(e) a person who is the subject of a decision under section 94 that the person is not entitled to apply for a certificate for a specified period; or
(f) a person who is disqualified under section 119;
engage in legal practice includes practise law or provide legal services, but does not include engage in policy work (which, without limitation, includes developing and commenting on legal policy);
entity includes—
(a) an individual, an incorporated body and an unincorporated body or other organisation; and
(b) in the case of a partnership—
(i) the partnership as currently constituted from time to time; or
(ii) the assignee or receiver of the partnership;
exercise of a function includes, where the function is a duty, the performance of the duty;
external examiner means a person appointed as such under Part 4.2;
external intervener means a supervisor, manager or receiver under Chapter 6;
external intervention means the appointment of, and the exercise of the functions of, a supervisor, manager or receiver under Chapter 6;
external investigator means a person appointed as such under Part 4.2;
fee, gain or reward includes any form of, and any expectation of, a fee, gain or reward;
fidelity authority means an entity specified in jurisdictional legislation for the purposes of this definition;
Note
See clause 15 of Schedule 3 regarding the fidelity authority for a non-participating jurisdiction.
fidelity fund—see sections 222 and 223;
Note
See clause 15 of Schedule 3 regarding the fidelity fund of a non-participating jurisdiction.
financial service has the same meaning as it has in Chapter 7 of the Corporations Act;
financial services business has the same meaning as it has in Chapter 7 of the Corporations Act;
financial year means a year ending on 30 June;
fixed costs legislative provision means a determination, scale, arrangement or other provision fixing the costs or maximum costs of any legal services that is made by or under the Uniform Rules or any other legislation;
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 means law of a foreign country;
foreign lawyer means an individual who is properly registered or authorised to engage in legal practice in a foreign country by the foreign registration authority for the country;
foreign lawyer associate of a law practice means an associate of the law practice who is an Australian-registered foreign lawyer;
foreign registration authority means an entity in a foreign country having the function, conferred by the law of the foreign country, of registering or authorising persons to engage in legal practice in the foreign country;
function includes a power, authority or duty, and without limitation includes jurisdiction in relation to a court;
general trust account—see section 128;
government authority includes a Minister, government department or public authority of the Commonwealth or of a jurisdiction, and includes a body or organisation (or a class of bodies or organisations) declared in the Uniform Rules to be within this definition;
government lawyer means a person who engages in legal practice only—
(a) as an officer or employee of a government authority; or
(b) as the holder of a statutory office of the Commonwealth or of a jurisdiction; or
(c) in another category specified in the Uniform Rules;
government legal practitioner means a government lawyer who is an Australian legal practitioner;
GST has the same meaning as it has in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth;
home jurisdiction means—
(a) in the case of an applicant for or the holder of an Australian practising certificate granted in a participating jurisdiction—the jurisdiction last notified under section 46 as applying in that or another participating jurisdiction; or
(b) in the case of an applicant for or the holder of an Australian registration certificate granted in a participating jurisdiction—the jurisdiction last notified under section 63 as applying in that or another participating jurisdiction; or
(c) in the case of the holder of an Australian practising certificate or Australian registration certificate granted in a non-participating jurisdiction—see Schedule 3; or
(d) in the case of an associate of a law practice who is neither an Australian legal practitioner nor an Australian-registered foreign lawyer—
(i) where only one jurisdiction is the home jurisdiction for the only legal practitioner associate of the law practice or for all the legal practitioner associates of the law practice—that jurisdiction; or
(ii) where no single jurisdiction is the home jurisdiction for all the legal practitioner associates of the law practice—
(A) the jurisdiction in which the office is situated at which the associate performs most of his or her duties for the law practice; or
(B) if a jurisdiction cannot be determined under sub-subparagraph (A)—the jurisdiction in which the associate is enrolled under a law of the jurisdiction to vote at Australian government elections for the jurisdiction; or
(C) if a jurisdiction cannot be determined under sub-subparagraph (A) or (B)—the jurisdiction of the associate’s place of residence in Australia or (if he or she does not have a place of residence in Australia) the jurisdiction of his or her last place of residence in Australia; or
(e) in any other case—the jurisdiction determined in accordance with the Uniform Rules;
host—see section 5;
incorporated legal practice means a corporation that satisfies the following criteria—
(a) it is—
(i) a company within the meaning of the Corporations Act; or
(ii) a corporation, or a corporation of a kind, approved by the Council under section 114 or specified in the Uniform Rules for the purposes of this definition;
(b) it has given notice under section 104 that it intends to engage in legal practice in Australia and that notice is still operative;
(c) the legal services it provides or proposes to provide are not limited to either or both of the following services—
(i) in-house legal services for the corporation or a related entity;
(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;
Note
The Uniform Rules under section 10(3) may provide that certain entities are exempt from the operation of section 10(1), which provides that an entity must not engage in legal practice in this jurisdiction unless it is a qualified entity.
(d) it is not excluded by the Uniform Rules from being an incorporated legal practice—
but does not include a community legal service;
independent entity means an independent statutory body (not being a professional association) or an independent statutory office holder;
indexed means indexed in accordance with section 471;
insolvent under administration has the same meaning as it has in the Corporations Act;
Intergovernmental Agreement means the Bilateral Agreement on the Legal Profession Uniform Framework between New South Wales and Victoria dated 5 December 2013, and any successor agreement, as respectively in force from time to time;
investigator (in Chapter 7)—see section 368;
jurisdiction means a State of the Commonwealth, the Australian Capital Territory or the Northern Territory of Australia;
jurisdictional legislation means legislation of a jurisdiction;
Law Council of Australia means Law Council of Australia Limited;
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) a sole practitioner; or
(b) a law firm; or
(c) a community legal service; or
(d) an incorporated legal practice; or
(e) an unincorporated legal practice;
lawyer—
(a) in Part 4.5—see section 219; and
(b) when used alone in Chapter 5, Chapter 7, section 461 or Schedule 3—see section 261, section 369, section 461(3) or clause 1 of Schedule 3, respectively;
lay associate of a law practice means a person who is not an Australian legal practitioner and who is—
(a) an associate of the law practice; or
(b) a consultant to the law practice (however described) who provides services related to legal services to the law practice, other than services of a kind specified in the Uniform Rules for the purposes of this definition; or
(c) a person who shares the receipts, revenue or other income arising from the law practice;
legal costs means—
(a) 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; or
(b) without limitation, amounts that a person has been or may be charged, or is or may become liable to pay, as a third party payer in respect of the provision of legal services by a law practice to another person—
including disbursements but not including interest;
Legal Practice Rules means the provisions of the Uniform Rules that are designated as Legal Practice Rules (see section 420);
legal practitioner associate of a law practice means an associate of the law practice who is an Australian legal practitioner;
Legal Profession Conduct Rules means the provisions of the Uniform Rules designated as Legal Profession Conduct Rules (see section 420);
Legal Profession Uniform Law Act of a jurisdiction means the Act of that jurisdiction that applies this Law (whether with or without modification) as a law of that jurisdiction;
Note
It is intended that the Intergovernmental Agreement will provide for permissible modifications of the Uniform Law.
legal services means work done, or business transacted, in the ordinary course of legal practice;
litigious matter means a matter that involves, or is likely to involve, the issue of proceedings in a court or tribunal;
Note
A matter is a litigious matter when proceedings are initiated or at any stage when proceedings are reasonably likely.
local legal profession register means the register (if any) maintained under jurisdictional legislation of this jurisdiction (see section 434);
local regulations means regulations made under the Legal Profession Uniform Law Act of this jurisdiction;
local regulatory authority, in the context of a reference to “a local regulatory authority” or “local regulatory authorities” in a provision of this Law, means any designated local regulatory authority;
managed investment scheme has the same meaning as it has in the Corporations Act;
management system direction means a direction under section 257;
member includes an acting member;
member of the staff of the Council, the Commissioner or a local regulatory authority means a person employed, engaged or assigned to provide assistance in the exercise of the respective functions of the Council, Commissioner or authority;
modifications includes modifications by way of alteration, omission, addition or substitution;
mortgage means an instrument or proposed instrument under which an interest in real property is charged, encumbered or transferred as security for the payment or repayment of money;
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 the purposes of, or under, the loan—
but does not include providing legal advice or preparing an instrument for the loan;
non-associated third party payer—see section 171;
non-participating jurisdiction means a jurisdiction that is not a participating jurisdiction;
obstruct includes hinder, delay, resist and attempt to obstruct;
officer of a law practice includes a principal of the law practice;
operational term of the Council—see section 395;
Parliament of a jurisdiction includes, in the case of the Australian Capital Territory or the Northern Territory of Australia, the Legislative Assembly of the Territory;
participating jurisdiction means—
(a) a jurisdiction in which this Law applies as a law of the jurisdiction and on behalf of which the Intergovernmental Agreement has been signed; or
(b) a jurisdiction in respect of which the Standing Committee decides that a law of the jurisdiction substantially corresponds to the provisions of this Law;
partnership includes a limited partnership;
pecuniary loss (in Part 4.5)—see section 219;
penalty unit means an amount equal to the value of a penalty unit under an Act of Victoria for an offence, and has that meaning in a provision of this Law regardless of whether the provision gives rise to a criminal offence or is a civil penalty provision;
Note
The meaning of penalty units for offences in Victorian Acts is contained in section 110 of the Sentencing Act 1991 of Victoria. The value of a penalty unit for a financial year is fixed by the Victorian Treasurer under the Monetary Units Act 2004 of Victoria.
permanent form, in relation to a trust record—see section 128;
power, in relation to trust money, includes an authority;
practical legal training means either or both of the following—
(a) legal training by participation in course work;
(b) supervised legal training, whether involving articles of clerkship or otherwise;
principal of a law practice is an Australian legal practitioner who—
(a) in the case of a sole practitioner—is the sole practitioner; or
(b) in the case of a law firm—is a partner in the firm; or
(c) in the case of a community legal service—is a supervising legal practitioner of the service referred to in section 117; or
(d) in the case of an incorporated legal practice or an unincorporated legal practice—
(i) holds an Australian practising certificate authorising the holder to engage in legal practice as a principal of a law practice; and
(ii) is—
(A) if the law practice is a company within the meaning of the Corporations Act—a validly appointed director of the company; or
(B) if the law practice is a partnership—a partner in the partnership; or
(C) if the law practice is neither—in a relationship with the law practice that is of a kind approved by the Council under section 40 or specified in the Uniform Rules for the purposes of this definition;
pro bono basis—see section 8;
professional association means an entity whose membership consists principally of Australian legal practitioners and whose principal functions include representing or assisting Australian legal practitioners;
professional misconduct—see section 297;
professional obligations includes—
(a) duties to the Supreme Courts; and
(b) obligations in connection with conflicts of interest; and
(c) duties to clients, including disclosure; and
(d) ethical standards required to be observed—
that do not otherwise arise under this Law or the Uniform Rules;
qualified entity means—
(a) an Australian legal practitioner; or
(b) a law practice; or
(c) either—
(i) an Australian-registered foreign lawyer; or
(ii) a foreign lawyer who is not an Australian-registered foreign lawyer but only to the extent that the foreign lawyer’s legal practice is limited to the practice of foreign law and is carried out in accordance with the applicable requirements of Part 3.4; or
(d) an individual engaged in legal practice under the authority of a law of the Commonwealth or of a jurisdiction, other than this Law or the Uniform Rules; or
(e) an entity engaged in legal practice of a kind specified in the Uniform Rules for the purposes of this definition, but only while the entity engages in the legal practice in accordance with any applicable requirements of the Uniform Rules;
quashing of a conviction for an offence includes the quashing of—
(a) a finding of guilt in relation to the offence; or
(b) the acceptance of a guilty plea in relation to the offence—
but does not include the quashing of a conviction where a finding of guilt or the acceptance of a guilty plea remains unaffected in relation to the offence;
regulated property, in relation to a law practice, means the following—
(a) trust money or trust property received, receivable or held by the law practice;
(b) interest, dividends or other income or anything else derived from or acquired with money or property referred to in paragraph (a);
(c) documents or records of any description relating to anything referred to in paragraph (a) or (b);
(d) any computer hardware or software, or other device, in the custody or control of the law practice or an associate of the law practice by which any documents or records referred to in paragraph (c) may be produced or reproduced in visible form;
(e) client files;
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) if the person is not a company within the meaning of that Act—a person specified or described in the Uniform Rules for the purposes of this definition;
respondent means the lawyer (within the meaning it has when used alone in Chapter 5) who, or the law practice that, is the subject of a complaint;
serious offence means an offence that is—
(a) an indictable offence against a law of the Commonwealth, a State or a Territory (whether or not the offence is or may be dealt with summarily); or
(b) an offence against a law of a foreign country that would be an indictable offence against a law of the Commonwealth, a State or a Territory if committed in Australia (whether or not the offence could be dealt with summarily if committed in Australia);
sole practitioner means an Australian legal practitioner who engages in legal practice on his or her own account;
solicitor means an Australian legal practitioner whose Australian practising certificate is not subject to a condition that the holder is authorised to engage in legal practice as or in the manner of a barrister only;
staff—see the definition of member of the staff;
Standing Committee means the Attorneys-General of the participating jurisdictions;
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 legal practitioner associate of the law practice is an authorised principal; and
(ii) the person engages in legal practice under the supervision of an authorised principal referred to in subparagraph (i); or
(b) as a principal of a law practice (other than a community legal service), where the person engages in legal practice under the supervision of an authorised principal of the law practice; or
(c) as a corporate legal practitioner or government legal practitioner, where the person engages in legal practice under the supervision of a person who holds, or is eligible to hold but is exempted from holding, an Australian practising certificate authorising the holder to supervise legal practice by others; or
(d) in a capacity or in circumstances specified in the Uniform Rules for the purposes of this definition;
supervising legal practitioner, in relation to a community legal service, means an Australian legal practitioner who is designated under section 117 as a supervising legal practitioner for the service;
Supreme Court means—
(a) the Supreme Court of this jurisdiction; but
(b) so far as the term is used in the context of (or that includes or implies the inclusion of) another jurisdiction (for example, by the words “a Supreme Court”)—the Supreme Court of the other jurisdiction;
Note
See also subsection (4).
Supreme Court roll means—
(a) the roll of Australian lawyers maintained by the Supreme Court; but
(b) so far as the term is used in the context of (or that includes or implies the inclusion of) another jurisdiction (for example, by the words “a Supreme Court roll”), it means a roll of Australian lawyers maintained by the Supreme Court of the other jurisdiction;
tax offence means any offence under the Taxation Administration Act 1953 of the Commonwealth;
third party payer—see section 171;
transit money—see section 128;
tribunal includes a panel or person authorised to hear or determine a matter;
trust account—see section 128;
trust money—see section 129;
trust property—see section 128;
trust records—see section 128;
trust records examination means an external examination of trust records under Division 3 of Part 4.2;
trust records investigation means an external investigation of trust records under Division 4 of Part 4.2;
Uniform Regulations means the Legal Profession Uniform Regulations made under Part 9.1;
Uniform Rules means the Legal Profession Uniform Rules made under Part 9.2;
unincorporated legal practice means an unincorporated body or group that satisfies the following criteria—
(a) it is—
(i) a partnership; or
(ii) an unincorporated body or group, or an unincorporated body or group of a kind, approved by the Council under section 114 or specified in the Uniform Rules for the purposes of this definition;
(b) it has given notice under section 104 that it intends to engage in legal practice in Australia and that notice is still operative;
(c) the legal services it provides or proposes to provide are not limited to either or both of the following services—
(i) in-house legal services for the unincorporated body or group;
(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;
(d) it is not excluded by the Uniform Rules from being an unincorporated legal practice—
but does not include—(e) a law firm; or
(f) a community legal service; or
(g) an incorporated legal practice;
unsatisfactory professional conduct—see section 296;
uplift fee means additional legal costs (excluding disbursements) payable under a costs agreement on the successful outcome of the matter to which the agreement relates;
vary includes, in relation to an Australian practising certificate or an Australian registration certificate, impose a condition on the certificate and alter or revoke a condition (other than a statutory condition) already imposed on the certificate.
Note
For the term this jurisdiction, see the Legal Profession Uniform Law Act of each participating jurisdiction.
(2) In this Law, a reference to this Law (or to a provision of this Law) is a reference to this Law (or a provision of this Law) as applied in this jurisdiction, except as expressly provided otherwise and except where the context or subject matter otherwise indicates or requires.
(3) In this Law, a reference to this Law as applied in a participating jurisdiction (or to a provision of this Law as applied in a participating jurisdiction), is a reference to—
(a) this Law (or a provision of this Law) as applied by the Legal Profession Uniform Law Act of that jurisdiction; or
(b) a law (or corresponding provision of a law) of that jurisdiction that the Standing Committee decides is a law that substantially corresponds to the provisions of this Law (see section 392(2)).
(4) In this Law, a reference to the Supreme Court of a jurisdiction (whether express or implied) is a reference—
(a) to that Supreme Court as constituted in accordance with the law of that jurisdiction, including (where applicable) a provision of the Legal Profession Uniform Law Act of that jurisdiction; or
(b) if the law of that jurisdiction, including (where applicable) a provision of the Legal Profession Uniform Law Act of that jurisdiction, provides for a particular function of that Supreme Court to be exercised by a member, part or official of that Supreme Court—to that member, part or official exercising that function.
(5) In this Law, a reference to an Australian practising certificate or Australian registration certificate “granted” in a jurisdiction is a reference to a certificate granted, issued or renewed under a law in force in the jurisdiction.
(6) Notes included in this Law (including footnotes and endnotes) are part of this Law.
s 6: Am 2015 No 8, sec 18.
7 Interpretation generally
(1) The Interpretation of Legislation Act 1984 of Victoria applies to the interpretation of this Law, the Uniform Regulations and the Uniform Rules in the same way as it applies to the interpretation of legislation and statutory instruments of Victoria.
(2) Definitions, words and other expressions have in the Uniform Regulations or part of the Uniform Regulations the same meanings as they have in this Law or the relevant part of this Law, unless a contrary intention appears in this Law or the Uniform Regulations.
(3) Definitions, words and other expressions have in the Uniform Rules or part of the Uniform Rules the same meanings as they have in this Law or the relevant part of this Law, unless a contrary intention appears in this Law or the Uniform Rules.
8 Meaning of pro bono basis
For the purposes of this Law, an Australian legal practitioner provides legal services on a pro bono basis where—
(a) the practitioner, without fee, gain or reward or at a reduced fee, advises or represents a client in cases where—
(i) the client would not otherwise have access to legal services; or
(ii) the client’s case raises a wider issue of public interest; or
(b) the practitioner is involved in free community legal education or law reform; or
(c) the practitioner is involved in the giving of free legal advice or representation to charitable and community organisations.
Part 2.1 Unqualified legal practice
9 Objectives
The objectives of this Part are—
(a) to ensure, in the interests of the administration of justice, that legal work is carried out only by those who are properly qualified to do so; and
(b) to protect clients of law practices by ensuring that persons carrying out legal work are entitled to do so.
10 Prohibition on engaging in legal practice by unqualified entities
(1) An entity must not engage in legal practice in this jurisdiction, unless it is a qualified entity.
Penalty: 250 penalty units or imprisonment for 2 years, or both.
(2) An entity is not entitled to recover any amount, and must repay any amount received, in respect of anything the entity did in contravention of subsection (1). Any amount so received may be recovered as a debt by the person who paid it.
(3) Subsection (1) does not apply to an entity or class of entities declared by the Uniform Rules to be exempt from the operation of subsection (1), but only to the extent (if any) specified in the declaration.
11 Prohibition on advertisements or representations by or about unqualified entities
(1) An entity must not advertise or represent, or do anything that states or implies, that it is entitled to engage in legal practice, unless it is a qualified entity.
Penalty: 250 penalty units.
(2) A director, partner, officer, employee or agent of an entity must not advertise or represent, or do anything that states or implies, that the entity is entitled to engage in legal practice, unless the entity is a qualified entity.
Penalty: 50 penalty units.
12 Entitlement of certain persons to use certain titles, and presumptions with respect to other persons
(1) Titles This section applies to the following titles—
(a) lawyer, legal practitioner, barrister, solicitor, attorney, counsel or proctor;
(b) Senior Counsel, Queen’s Counsel, King’s Counsel, Her Majesty’s Counsel or His Majesty’s Counsel;
(c) any other title specified in the Uniform Rules for the purposes of this section.
(2) Entitlement to take or use title A person is entitled by force of this section to take or use a title to which this section applies if—
(a) the person is of a class authorised by the Uniform Rules for the purposes of this section to take or use that title; and
(b) where the Uniform Rules so provide—the person does so in circumstances, or in accordance with restrictions, specified in the Uniform Rules for the purposes of this section.
(3) Presumption of representation of entitlement of person The taking or use of a title to which this section applies by a person gives rise to a rebuttable presumption (for the purposes of section 11(1)) that the person represented that he or she is entitled to engage in legal practice.
(4) Presumption of representation of entitlement of entity The taking or use of a title to which this section applies by a person in connection with an entity, of which the person is a partner, director, officer, employee or agent, gives rise to a rebuttable presumption (for the purposes of section 11(2)) that the person represented that the entity is entitled to engage in legal practice.
13 Protection of lay associates
A lay associate of a law practice does not contravene a provision of this Law or the Uniform Rules merely because of any of the following—
(a) he or she receives any fee, gain or reward for business of the law practice that is the business of an Australian legal practitioner;
(b) he or she holds out, advertises or represents himself or herself as a lay associate of the law practice where its business includes the provision of legal services;
(c) he or she shares with any other person the receipts, revenue or other income of the law practice where its business is the business of an Australian legal practitioner—
unless the provision expressly applies to lay associates of law practices.
14 Functions of local regulatory authority with respect to offence
The designated local regulatory authority may—
(a) take any steps that in its opinion may be necessary or proper for or with respect to the investigation of any question as to conduct by any entity (whether or not an Australian lawyer) that is, or may be, a contravention of a provision of this Part; and
(b) institute prosecutions and other proceedings for the contravention of a provision of this Part by any entity (whether or not an Australian lawyer).
Division 1 Introduction
15 Objective
The objective of this Part is to protect the administration of justice and the clients of law practices by providing a system under which persons are eligible for admission to the Australian legal profession only if—
(a) they have appropriate academic qualifications and practical legal training, whether obtained in Australia or elsewhere; and
(b) they are fit and proper persons to be admitted.
Notes
Division 2 Admission
16 Admission
(1) The Supreme Court of this jurisdiction may admit an individual aged 18 years or over to the Australian legal profession as an Australian lawyer, but only if—
(a) the designated local regulatory authority has provided the Supreme Court with a compliance certificate in respect of the person and the certificate is still in force; and
(b) the person is not already admitted to the Australian legal profession; and
(c) the person takes an oath of office, or makes an affirmation of office, in the form required by the Supreme Court.
(2) Residence in, or any other connection with, this jurisdiction is not a requirement for admission by the Supreme Court.
Note
A person may seek admission by the Supreme Court of any participating jurisdiction, subject to compliance with this Law and applicable jurisdictional legislation.
(3) Any person may, in accordance with any applicable rules of court, object to the Supreme Court to the admission of a particular person.
(4) Nothing in this section is intended to interfere with the inherent jurisdiction of the Supreme Court to refuse admission.
17 Prerequisites for compliance certificates
(1) The prerequisites for the issue of a compliance certificate in respect of a person are that he or she—
(a) has attained the academic qualifications specified under the Admission Rules for the purposes of this section (the specified academic qualifications prerequisite); and
(b) has satisfactorily completed the practical legal training requirements specified in the Admission Rules for the purposes of this section (the specified practical legal training prerequisite); and
(c) is a fit and proper person to be admitted to the Australian legal profession.
(2) In considering whether a person is a fit and proper person to be admitted to the Australian legal profession—
(a) the designated local regulatory authority may have regard to any matter relevant to the person’s eligibility or suitability for admission, however the matter comes to its attention; and
(b) the designated local regulatory authority must have regard to the matters specified in the Admission Rules for the purposes of this section.
18 Exemption from certain prerequisites
(1) The designated local regulatory authority may exempt a person from satisfying the specified academic qualifications prerequisite or the specified practical legal training prerequisite or both, if the designated local regulatory authority is satisfied that the person has sufficient legal skills or relevant experience so as to render the person eligible for admission.
(2) The legal skills or relevant experience or both can be obtained in legal practice, in service with a government authority or in another way considered appropriate by the designated local regulatory authority. They can be obtained wholly in Australia or overseas or obtained partly in Australia and partly overseas.
19 Compliance certificates
(1) A person may apply, in accordance with the Admission Rules, to the designated local regulatory authority for a compliance certificate if the person proposes to be admitted in this jurisdiction.
Note
Section 474(2) contemplates that jurisdictional legislation may fix fees for payment in relation to any function of the Supreme Court, the designated tribunal or a local regulatory authority under this Law or the Uniform Rules. This could, for example, extend to processing an application for a compliance certificate.
(2) The designated local regulatory authority may require an applicant for a compliance certificate to provide further information to it within a specified time.
(3) The designated local regulatory authority may issue and provide to the Supreme Court a compliance certificate stating that the applicant has satisfied it that he or she—
(a) has satisfied the specified academic qualifications prerequisite and the specified practical legal training prerequisite (or is exempted under section 18); and
(b) is a fit and proper person to be admitted to the Australian legal profession (as referred to in section 17(1)(c)).
(4) The designated local regulatory authority may revoke a compliance certificate issued in respect of a person if satisfied that the certificate was issued on the basis of information provided by the person that was false, misleading or incomplete in a material particular or that the certificate was issued in error. The designated local regulatory authority must notify the person of the revocation of the compliance certificate.
(5) However, revocation of a compliance certificate under this section does not of itself affect the person’s admission if he or she is already admitted.
(6) The designated local regulatory authority must ensure that notice is given, in accordance with the Admission Rules, on an appropriate website of an application for admission.
(7) Any person may object to the designated local regulatory authority against the issue by it of a compliance certificate to a particular person.
(8) The designated local regulatory authority is not to issue a compliance certificate until after it—
(a) has given notice under subsection (6) of the application; and
(b) has afforded a reasonable opportunity for persons to object to the issue of the certificate; and
(c) has—
(i) given the applicant a copy of each objection that is received within a reasonable period and that the designated local regulatory authority considers affects the applicant’s eligibility or suitability for admission; and
(ii) afforded the applicant an opportunity to respond to each objection referred to in subparagraph (i) within a reasonable period specified by the designated local regulatory authority and notified to the applicant; and
(d) has considered all objections received within a reasonable period as contemplated by paragraph (b) and all responses received from the applicant within the specified period as contemplated by paragraph (c).
(9) Failure to give notice under subsection (6), or to give notice in accordance with the Admission Rules, does not affect the validity of the applicant’s admission.
20 Conditional admission of foreign lawyers
(1) The designated local regulatory authority may recommend in a compliance certificate in respect of a foreign lawyer that the foreign lawyer be admitted subject to conditions of one or more of the following kinds—
(a) a condition limiting the period of the foreign lawyer’s admission;
(b) a condition requiring the foreign lawyer to undertake particular academic or practical legal training or both;
(c) a condition requiring the foreign lawyer to engage in supervised legal practice;
(d) a condition limiting the area of law in which the foreign lawyer may engage in legal practice;
(e) a condition otherwise restricting the foreign lawyer’s practising entitlements.
(2) The admission of a foreign lawyer is subject to the conditions (if any) recommended by the designated local regulatory authority in the compliance certificate.
(3) The Supreme Court may, after the admission of a foreign lawyer, vary or revoke a condition to which the foreign lawyer’s admission by the Court is subject. The designated local regulatory authority may make recommendations about the variation or revocation of a condition, and the Court must consider any recommendations made by the designated local regulatory authority in deciding on the variation or revocation of the condition.
(4) Without limiting the grounds on which a person’s name may be removed from the Supreme Court roll, the Supreme Court may order the removal of a person’s name from the Supreme Court roll for a contravention of a condition.
(5) Without limiting subsection (4), a contravention of a condition is capable of constituting unsatisfactory professional conduct or professional misconduct.
Note
Section 48(1) provides that it is a statutory condition of an Australian practising certificate granted in this jurisdiction that the holder must not contravene a condition that was imposed on the admission of the person to the Australian legal profession and that is still in force.
(6) Nothing in this section is intended to interfere with the inherent jurisdiction of the Supreme Court to refuse admission.
21 Declaration of early assessment of suitability for a compliance certificate
(1) A person may apply to the designated local regulatory authority for a declaration that matters disclosed by the person will not, without more, adversely affect an assessment by it as to whether the person is a fit and proper person to be admitted.
(2) The designated local regulatory authority may make the declaration applied for in relation to any or all of the matters disclosed and specified in the declaration or may refuse to do so.
(3) A declaration made under this section is binding on the designated local regulatory authority unless the applicant failed to make a full and fair disclosure of all matters relevant to the declaration sought.
22 Supreme Court roll
(1) The Supreme Court must maintain a roll of Australian lawyers (the Supreme Court roll) for this jurisdiction containing the names and other relevant particulars of persons admitted by the Court, whether conditionally or without conditions.
(2) A person’s admission is effective from the time the person signs the Supreme Court roll.
23 Removal from Supreme Court roll
(1) The Supreme Court may order the removal of the name and other particulars of a person from the Supreme Court roll, on—
(a) its own motion; or
(b) the recommendation of the designated local regulatory authority; or
(c) the recommendation of the designated tribunal.
(2) The designated local roll authority must remove a person’s name from the Supreme Court roll (the relevant roll) if satisfied that the person’s name has been removed from the Supreme Court roll for another jurisdiction (the other roll) and no order referred to in subsection (3) is, at the time of that removal, in force in relation to it.
(3) The Supreme Court may, on application by a person who reasonably expects that his or her name will be removed from the other roll, order that his or her name not be removed from the relevant roll under subsection (2), if the Supreme Court is satisfied that—
(a) the person’s name is likely to be removed from the other roll; and
(b) the reason for the removal of the name will not involve disciplinary action or the possibility of disciplinary action—
or may refuse to make an order.
(4) An order under subsection (3) may be made subject to any conditions the Supreme Court considers appropriate and remains in force for the period specified in it.
(5) The Supreme Court may revoke an order made under subsection (3), and subsection (2) then applies as if the person’s name were removed from the other roll when the revocation takes effect.
(6) The designated local roll authority—
(a) may, but need not, give the person notice of the date on which the authority proposes to remove the name from the relevant roll; and
(b) must, as soon as practicable, give the person notice of the removal of the name from the relevant roll, unless notice of the date of the proposed removal was previously given.
(7) The person’s name is, on his or her application to the designated local roll authority or on the designated local roll authority’s own initiative, to be restored to the relevant roll if the name is restored to the other roll.
(8) Nothing in this section prevents a person whose name is removed from the relevant roll from afterwards applying for admission under this Part.
Notes
24 Notice to be given of interjurisdictional action
(1) A person whose name is on the Supreme Court roll for this jurisdiction and whose name has been removed from the Supreme Court roll for another jurisdiction must, as soon as practicable, give the designated local roll authority a written notice of the removal.
Civil penalty: 50 penalty units.
(2) If an authority or tribunal has, under a corresponding law, made a recommendation that a person’s name be removed from the Supreme Court roll for this jurisdiction, the person must, as soon as practicable, give the designated local roll authority a written notice of the recommendation.
Civil penalty: 50 penalty units.
Note
See section 80 for the requirement for the holder of an Australian practising certificate granted in this jurisdiction to give a separate notice to a designated local regulatory authority if the holder’s name is removed from the Supreme Court roll for another jurisdiction.
25 Australian lawyer is officer of Supreme Court
An Australian lawyer is an officer of the Supreme Court of this jurisdiction for as long as his or her name remains on the Supreme Court roll for any jurisdiction.
Division 3 Appeals
26 Right of appeal about compliance certificates
(1) An applicant for a compliance certificate may appeal to the Supreme Court against the refusal of the designated local regulatory authority to issue a compliance certificate.
(2) A person for whom a compliance certificate has been issued by the designated local regulatory authority may appeal to the Supreme Court against the revocation of the compliance certificate.
(3) A foreign lawyer for whom a compliance certificate has been issued by the designated local regulatory authority recommending that the foreign lawyer be admitted subject to any conditions referred to in section 20(1) may appeal to the Supreme Court against the recommendation.
(4) The Supreme Court may make any order it considers appropriate on an appeal under this section.
(5) If the Supreme Court decides that an appeal under subsection (1) should be granted, the order may include a direction that the order has the same effect as a compliance certificate provided to the Court by the designated local regulatory authority.
27 Right of appeal about early assessment of suitability for a compliance certificate
(1) An applicant for a declaration of early assessment of suitability for a compliance certificate may appeal to the Supreme Court against the refusal of the designated local regulatory authority to make the declaration.
(2) The Supreme Court may make any order it considers appropriate on the appeal, including without limitation a declaration of early assessment of suitability for a compliance certificate.
(3) A declaration made under this section is binding on the designated local regulatory authority unless the applicant failed to make a full and fair disclosure of all matters relevant to the declaration sought.
28 Provisions relating to appeals
(1) An appeal under this Division is to be by way of a rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the designated local regulatory authority may be given on the appeal.
(2) On an appeal under this Division, the Supreme Court may make an order as to costs as it thinks fit, other than an order against the designated local regulatory authority in favour of an applicant where the appeal was not successful.
Division 4 Miscellaneous
29 Accreditation of law courses and providers of practical legal training
The designated local regulatory authority may accredit or reaccredit law courses or providers of practical legal training in accordance with the Admission Rules.
Part 3.1 Introduction
30 Objectives
The objectives of this Chapter are—
(a) to enable the provision of legal services through a range of business structures; and
(b) to ensure that any particular type of business structure does not hinder a law practice and the legal practitioners within it from complying with this Law, the Uniform Rules and the other professional obligations of Australian legal practitioners; and
(c) to ensure that clients of law practices are adequately protected regardless of the business structure through which a law practice provides legal services; and
(d) to regulate the provision of legal services through community legal services.
31 Action in relation to certificates is taken locally
An Australian practising certificate or Australian registration certificate granted in this jurisdiction cannot be varied, suspended or cancelled except under this Law as applied in this jurisdiction.
Note
This section makes it clear that a certificate granted in this jurisdiction cannot be amended by an authority of another jurisdiction. Section 75 provides that the designated local regulatory authority must vary, suspend or cancel a certificate at the direction of the designated tribunal under section 302.
32 Business structures
Legal services may be provided under any business structure, subject to the provisions of this Law and the Uniform Rules.
33 Obligations not affected by nature of business structures
(1) An Australian legal practitioner must comply with this Law, the Uniform Rules and his or her other professional obligations, regardless of the business structure in which or in connection with which the practitioner provides legal services.
(2) A law practice must comply with this Law, the Uniform Rules and its other professional obligations, regardless of the business structure in which or in connection with which the law practice provides legal services.
34 Responsibilities of principals
(1) Each principal of a law practice is responsible for ensuring that reasonable steps are taken to ensure that—
(a) all legal practitioner associates of the law practice comply with their obligations under this Law and the Uniform Rules and their other professional obligations; and
(b) the legal services provided by the law practice are provided in accordance with this Law, the Uniform Rules and other professional obligations.
(2) A failure to uphold that responsibility is capable of constituting unsatisfactory professional conduct or professional misconduct.
35 Liability of principals
(1) If a law practice contravenes, whether by act or omission, any provision of this Law or the Uniform Rules imposing an obligation on the law practice, a principal of the law practice is taken to have contravened the same provision, if—
(a) the principal knowingly authorised or permitted the contravention; or
(b) the principal was in, or ought reasonably to have been in, a position to influence the conduct of the law practice in relation to its contravention of the provision and failed to take reasonable steps to prevent the contravention by the law practice.
(2) A contravention by a principal arising under subsection (1) is capable of constituting unsatisfactory professional conduct or professional misconduct by the principal.
(3) Neither subsection (1) nor (2) affects any liability of the law practice or any other person for the contravention.
Note
Section 470 deals with contraventions by partnerships and other unincorporated bodies.
36 Discharge by legal practitioner associate of obligations of law practice
(1) A legal practitioner associate of a law practice may, on behalf of the law practice, discharge any obligations of the law practice under this Law or the Uniform Rules.
(2) For the purposes of subsection (1), the relevant provisions of this Law and the Uniform Rules apply to the associate in the same way as they apply to the law practice.
(3) Subsection (1) does not apply to the extent that the associate is prevented by the Uniform Rules from taking an action referred to in that subsection.
(4) This section does not affect any liability of a principal of the law practice.
37 Involvement of practitioners
Subject to this Law and to the conditions of his or her Australian practising certificate, an Australian legal practitioner is not prevented from being a partner, director, officer or employee of a law practice merely because of one or more of the following—
(a) the business of the law practice includes the provision of both legal services and other services;
(b) one or more other persons are lay associates of the law practice;
(c) the practitioner shares receipts, revenue or other income from the provision of his or her legal services with the law practice or one or more lay associates of the law practice.
38 Privileges of practitioners
(1) An Australian legal practitioner who provides legal services in the capacity of an officer, director, partner or employee of a law practice, or in the capacity of a corporate legal practitioner or government legal practitioner, 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 an officer, director, partner or employee of a law practice or in the capacity of a corporate legal practitioner or government legal practitioner.
39 Undue influence
A person must not cause or induce or attempt to cause or induce a law practice or a legal practitioner associate of a law practice to contravene this Law, the Uniform Rules or other professional obligations.
Penalty: 100 penalty units.
40 Approval of relationships regarding principals
The Council may approve a relationship, or a kind of relationship, for the purposes of the definition of principal in section 6.
41 Uniform Rules
The Uniform Rules may make provision with respect to any matter referred to in this Part.
42 Objectives
The objectives of this Part are—
(a) to provide a system for the grant and renewal of Australian practising certificates in this jurisdiction to eligible and suitable persons who are already admitted to the Australian legal profession in any jurisdiction; and
(b) to facilitate the national practice of law by ensuring that the holders of Australian practising certificates can engage in legal practice in this jurisdiction regardless of their home jurisdiction.
Note
The grant of practising certificates to New Zealand lawyers and their entitlement to practise in this jurisdiction are effected by the operation of the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth.
43 Entitlement to practise
(1) An Australian legal practitioner is entitled to engage in legal practice in this jurisdiction.
(2) That entitlement is subject to any requirements of this Law, the Uniform Rules and the conditions of the practitioner’s Australian practising certificate.
44 Grant or renewal of Australian practising certificates in this jurisdiction
(1) The designated local regulatory authority may, on application, grant or renew an Australian practising certificate in respect of a financial year.
(2) An Australian practising certificate granted in this jurisdiction is subject to conditions imposed by or under this Law or the Uniform Rules.
(3) An Australian practising certificate granted in this jurisdiction ceases to be in force if the holder ceases to be an Australian lawyer.
(4) The application cannot be made in this jurisdiction unless the applicant reasonably intends that this jurisdiction will be his or her principal place of practice during the currency of the certificate or renewal applied for.
(5) The Uniform Rules may specify the participating jurisdiction in which the application must be made if the applicant does not reasonably intend to engage in legal practice in Australia during the currency of the certificate or renewal applied for.
45 Prerequisites for grant or renewal of Australian practising certificates in this jurisdiction
(1) The designated local regulatory authority may grant or renew an Australian practising certificate only if it is satisfied that the applicant—
(a) is an Australian lawyer; and
(b) if required by this Law to have professional indemnity insurance—has, or will have on or before the grant or renewal, professional indemnity insurance in accordance with this Law and the Uniform Rules; and
(c) has indicated in the application that he or she does not hold (and he or she does not have a current application for) another Australian practising certificate that would be in force concurrently with the certificate whose grant or renewal is sought under this section.
Note
Section 474(2) contemplates that jurisdictional legislation may fix fees for payment in relation to any function of the Supreme Court, the designated tribunal or a local regulatory authority under this Law or the Uniform Rules. This could, for example, extend to processing an application for a practising certificate.
(2) Subject to subsection (4), the designated local regulatory authority must not grant or renew an Australian practising certificate if it considers that the applicant is not a fit and proper person to hold the certificate.
(3) In considering whether a person is or is not a fit and proper person to hold an Australian practising certificate, the designated local regulatory authority may have regard to the matters specified in the Uniform Rules for the purposes of this section.
(4) A person may be considered a fit and proper person to hold an Australian practising certificate even though the person does not satisfy the requirements for a matter to which the designated local regulatory authority may have regard, if it is satisfied that this action is warranted in the circumstances.
Note
A person who has been refused the grant or renewal of a certificate is a disqualified person—see the definition of disqualified person in section 6.
46 Notification of principal place of practice
(1) If an Australian lawyer reasonably intends that this jurisdiction will be his or her principal place of practice, he or she must notify the designated local regulatory authority of that intention—
(a) on application for the grant or renewal of an Australian practising certificate in this jurisdiction; and
(b) within 14 days after his or her principal place of practice changes, if that change coincides with the move to this jurisdiction from another jurisdiction of the permanent office in or through which the lawyer engages in legal practice.
(2) The designated local regulatory authority may reject the notification if it considers that it is reasonably likely that another jurisdiction will be the Australian lawyer’s principal place of practice.
47 Conditions—categories of practice and trust money
(1) An Australian practising certificate granted in this jurisdiction is subject to the condition, as determined by the designated local regulatory authority, that the holder is authorised to engage in legal practice—
(a) in one or more of the following categories—
(i) as a principal of a law practice;
(ii) as an employee of a law practice;
(iii) as a corporate legal practitioner;
(iv) as a government legal practitioner; or
(b) as or in the manner of a barrister only; or
(c) both as a volunteer at a community legal service and otherwise on a pro bono basis, only.
(2) An Australian practising certificate granted in this jurisdiction is subject to a condition, as determined by the designated local regulatory authority, that the holder is authorised or not authorised to receive trust money.
(3) An Australian practising certificate authorising the holder to engage in legal practice as a principal also authorises the holder to engage in legal practice as an employee of a law practice or a corporate legal practitioner or government legal practitioner.
(4) Until the Australian practising certificate concerned is renewed, and subject to any relevant conditions—
(a) an Australian practising certificate authorising the holder to engage in legal practice as an employee of a law practice also authorises the holder to engage in legal practice as a corporate legal practitioner or government legal practitioner; and
(b) an Australian practising certificate authorising the holder to engage in legal practice as a corporate legal practitioner also authorises the holder to engage in legal practice as a government legal practitioner; and
(c) an Australian practising certificate authorising the holder to engage in legal practice as a government legal practitioner also authorises the holder to engage in legal practice as a corporate legal practitioner.
(5) An Australian practising certificate that is subject to a condition that the holder is authorised to engage in legal practice as set out in subsection (1)(a) or (b) also authorises the holder to engage in legal practice as a volunteer at a community legal service, or otherwise on a pro bono basis.
Note
Discretionary conditions imposed by the designated local regulatory authority under section 53 may prohibit, restrict or regulate the provision of legal services by an Australian legal practitioner at community legal services or otherwise on a pro bono basis.
(6) An Australian practising certificate also authorises the holder to supervise legal practice by others. This does not apply—
(a) if the certificate is subject to a statutory or discretionary condition that the holder must engage in supervised legal practice only; or
(b) to the extent that the certificate is subject to a discretionary condition to the effect that the holder may not supervise legal practice by others.
Note
Section 211 provides that an Australian legal practitioner must not engage in legal practice in this jurisdiction unless the practitioner holds or is covered by a complying policy of professional indemnity insurance.
48 Statutory conditions—to comply with admission conditions and to hold only one practising certificate
(1) It is a statutory condition of an Australian practising certificate granted in this jurisdiction that the holder must not contravene a condition that was imposed on the admission of the person to the Australian legal profession (including that condition as varied after admission) and that is still in force.
(2) It is a statutory condition of an Australian practising certificate granted in this jurisdiction that the holder must not apply for or hold another Australian practising certificate that would be in force concurrently with the first certificate.
49 Statutory condition—to engage in supervised legal practice
(1) It is a statutory condition of an Australian practising certificate granted in this jurisdiction that the holder must, in this jurisdiction, 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 to qualify for admission to the Australian legal profession—a period or periods equivalent to 18 months of supervised legal practice; or
(b) if the holder completed other practical legal training to qualify for admission to the Australian legal profession—a period or periods equivalent to 2 years of supervised legal practice.
(2) The Uniform Rules may specify the method or a method of determining any such period or periods.
(3) The statutory condition does not apply to an Australian practising certificate with a condition that the holder is authorised to engage in legal practice as or in the manner of a barrister only.
(4) The designated local regulatory authority may—
(a) exempt a person or class of persons from the statutory condition; or
(b) reduce a period referred to in the statutory condition for a person or class of persons—
if satisfied that the person or persons do not need to be supervised or need to be supervised only for a shorter period, having regard to the length and nature of any legal practice previously engaged in by the person or persons.
(5) The exemption may be given unconditionally or subject to any conditions that the designated local regulatory authority thinks appropriate.
50 Statutory condition—barrister to undertake reading program
(1) It is a statutory condition of an Australian practising certificate granted in this jurisdiction, with a condition that the holder is authorised to engage in legal practice as or in the manner of a barrister only, that the holder must—
(a) undertake and complete to the satisfaction of the designated local regulatory authority a reading program (whether full-time or otherwise) specified in the Uniform Rules or otherwise approved by the designated local regulatory authority; and
(b) read for a period specified by the designated local regulatory authority with a barrister who is—
(i) of a class or description specified in the Uniform Rules or otherwise approved by the designated local regulatory authority; and
(ii) chosen by the holder; and
(c) comply with any other requirements specified by the designated local regulatory authority for the purposes of this paragraph.
(2) The designated local regulatory authority may impose a discretionary condition limiting the practising rights of a barrister referred to in subsection (1) until the statutory condition is complied with.
(3) The statutory condition, once satisfied, does not have to be complied with again unless the designated local regulatory authority otherwise directs.
(4) The designated local regulatory authority may exempt a person or class of persons from the statutory condition.
(5) The exemption may be given unconditionally or subject to any conditions that the designated local regulatory authority thinks appropriate.
51 Statutory condition—to notify certain events
(1) It is a statutory condition of an Australian practising certificate granted in this jurisdiction that the holder must notify the designated local regulatory authority in writing within 7 days that—
(a) the holder has been charged with or convicted of a serious offence, a tax offence or an offence specified in the Uniform Rules for the purposes of this section; or
(b) a bankruptcy-related event has occurred in relation to the holder; or
(c) the holder has become the subject of disciplinary proceedings as a lawyer in a foreign country.
(2) The Uniform Rules may specify circumstances in which a notice need not be given under subsection (1).
(3) Subsection (1) does not apply to an offence to which section 86 applies.
Note
Section 86 deals with automatic show cause events. Section 88 provides notification procedures for automatic show cause events for holders of Australian practising certificates.
52 Statutory condition—continuing professional development
It is a statutory condition of an Australian practising certificate granted in this jurisdiction that the holder must comply with the applicable requirements of the Continuing Professional Development Rules.
53 Discretionary conditions
(1) The designated local regulatory authority may impose discretionary conditions on an Australian practising certificate granted in this jurisdiction in accordance with the Uniform Rules, but those conditions must be of a kind permitted by this Law or specified or described in the Uniform Rules for the purposes of this section.
(2) Discretionary conditions may be imposed on an Australian practising certificate at its grant or renewal or during its currency and must be reasonable and relevant.
54 Compliance with conditions
The holder of an Australian practising certificate granted in this jurisdiction must comply with the conditions of the certificate.
Civil penalty: 100 penalty units.
55 Alteration or substitution of varied certificate
The designated local regulatory authority may alter a certificate, or issue a substitute certificate, to reflect a variation of the certificate under this Law, but the operation of the variation is not affected if the designated local regulatory authority does neither.
Note
A certificate can be issued in tangible or electronic format.
56 Government lawyers
It is intended that jurisdictional legislation may—
(a) exempt persons or classes of persons from the requirement to hold Australian practising certificates, either generally or for specified periods, in respect of their official functions as government lawyers; and
(b) without limitation, exclude or modify the operation of specified provisions of this Law (including provisions of Part 2.2) to the extent that any of those provisions would otherwise be applicable to any persons, or classes of persons, as government lawyers.
57 Uniform Rules for Australian practising certificates and associated matters
The Uniform Rules may make provision with respect to the following—
(a) any aspect of Australian practising certificates, including their grant and renewal and the imposition of conditions including conditions restricting practising entitlements;
(b) without limiting paragraph (a)—
(i) applications for the grant or renewal of Australian practising certificates, including the disclosure of matters relevant to an applicant’s eligibility and suitability; and
(ii) the refusal of applications for the grant or renewal of Australian practising certificates.
58 Objective
The objective of this Part is to encourage and facilitate the internationalisation of legal services 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.
59 This Part does not apply to Australian legal practitioners
This Part does not apply to an Australian legal practitioner (including an Australian legal practitioner who is also a foreign lawyer), except as expressly provided.
60 Practice of foreign law without registration but for limited periods
(1) A foreign lawyer may, subject to this Law, practise foreign law in this jurisdiction without having to hold a current Australian registration certificate—
(a) during one or more periods that do not in aggregate exceed 90 days in any period of 12 months; or
(b) during any period during which any restriction under the Migration Act 1958 of the Commonwealth has the effect of limiting the period during which work may be done, or business transacted, by the foreign lawyer in Australia.
(2) Subsection (1) does not apply to a foreign lawyer—
(a) who maintains an office in this jurisdiction for the purpose of practising foreign law in Australia; or
(b) who is a partner, director or other principal of a law practice in this jurisdiction; or
(c) whose Australian registration certificate has been cancelled and he or she has not subsequently been granted an Australian registration certificate; or
(d) while his or her Australian registration certificate is suspended.
(3) A foreign lawyer who does not hold a current Australian registration certificate must not—
(a) maintain an office in this jurisdiction for the purpose of practising foreign law in this jurisdiction; or
(b) practise foreign law in this jurisdiction as a partner, director or other principal of a law practice.
Penalty: 250 penalty units.
61 Entitlement to practise
(1) An Australian-registered foreign lawyer is entitled to practise foreign law in this jurisdiction.
(2) That entitlement is subject to any requirements of this Law and the Uniform Rules and the conditions of the foreign lawyer’s Australian registration certificate.
62 Grant or renewal of Australian registration certificates
(1) The designated local regulatory authority may, on application, grant or renew an Australian registration certificate in respect of a financial year.
(2) An Australian registration certificate is subject to conditions imposed by or under this Law or the Uniform Rules.
(3) The designated local regulatory authority must grant an Australian registration certificate to a person applying for it if the designated local regulatory authority is satisfied that—
(a) the person is an individual aged 18 years or over; and
(b) the person is registered or authorised to engage in legal practice in one or more foreign countries with an effective system of legal practice regulation and is not an Australian legal practitioner; and
(c) the person demonstrates an intention to engage in legal practice in Australia within a reasonable period after registration; and
(d) the person is not subject to any special conditions or undertakings concerning his or her engagement in legal practice as a result of criminal, civil or disciplinary proceedings in Australia or a foreign country that would make registration inappropriate; and
(e) the person 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 his or her capacity as—
(i) a foreign lawyer; or
(ii) an Australian-registered foreign lawyer; or
(iii) an Australian lawyer; and
(f) the person’s registration or authorisation is not cancelled or currently suspended in any place as a result of disciplinary action; and
(g) the person 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 as a result of criminal, civil or disciplinary proceedings in any place; and
(h) the person satisfies any other requirements of the Uniform Rules.
(4) The designated local regulatory authority may refuse to grant or renew an Australian registration certificate on any ground specified in the Uniform Rules for the purposes of this section.
(5) Residence or domicile in Australia is not a prerequisite for or a factor in entitlement to the grant or renewal of an Australian registration certificate.
(6) The designated local regulatory authority—
(a) may make any enquiries that it thinks fit of any foreign registration authority for the purposes of determining whether to be satisfied as to the matters referred to in subsection (3); and
(b) may consider any other matters, not inconsistent with this Law, that the designated local regulatory authority considers relevant.
(7) A foreign lawyer is registered as a foreign lawyer on being granted an Australian registration certificate, and ceases to be registered when the foreign lawyer no longer holds an Australian registration certificate.
Note
A person who is granted an Australian registration certificate becomes an Australian-registered foreign lawyer.
63 Notification of principal place of practice
(1) If an applicant for or holder of an Australian registration certificate reasonably intends that this jurisdiction will be his or her principal place of practice, he or she must notify the designated local regulatory authority of that intention—
(a) on application for the grant or renewal of an Australian registration certificate; and
(b) within 14 days after his or her principal place of practice changes, if that change coincides with the move to this jurisdiction from another jurisdiction of the permanent office in or through which the holder engages in legal practice.
(2) The designated local regulatory authority may reject the notification if it considers that it is reasonably likely that another jurisdiction will be the person’s principal place of practice.
64 Conditions—trust money
An Australian registration certificate is subject to a condition, as determined by the designated local regulatory authority, that the holder is authorised or not authorised to receive trust money.
65 Statutory condition—to hold only one Australian registration certificate
It is a statutory condition of an Australian registration certificate that the holder must not apply for or hold another Australian registration certificate that would be in force concurrently with the first certificate.
66 Statutory condition—to notify certain events
(1) It is a statutory condition of an Australian registration certificate that the holder must notify the designated local regulatory authority in writing within 7 days of the event that—
(a) the holder has been charged with or convicted of a serious offence, a tax offence or an offence specified in the Uniform Rules for the purposes of this section; or
(b) a bankruptcy-related event has occurred in relation to the holder; or
(c) the holder is the subject of disciplinary proceedings, or other disciplinary action, as a lawyer in a foreign country.
(2) The Uniform Rules may specify circumstances in which notification is not required.
67 Discretionary conditions
(1) The designated local regulatory authority may impose discretionary conditions on an Australian registration certificate in accordance with the Uniform Rules, but those conditions must be of a kind specified or described in the Uniform Rules for the purposes of this section.
(2) Discretionary conditions may be imposed on an Australian registration certificate at its grant or renewal or during its currency and must be reasonable and relevant.
(3) Without limitation, a discretionary condition may require the holder to engage in the practice of foreign law under specified supervision or restrict the foreign lawyer’s practising entitlements.
(4) The designated local regulatory authority must include details of discretionary conditions imposed on a foreign lawyer’s Australian registration certificate in a local legal profession register.
68 Compliance with conditions
The holder of an Australian registration certificate granted in this jurisdiction must comply with the conditions of the certificate.
Civil penalty: 100 penalty units.
Division 5 Scope and form of practice
69 Scope of practice
(1) This section applies to—
(a) a foreign lawyer who is practising foreign law under Division 2; or
(b) an Australian-registered foreign lawyer.
(2) The foreign lawyer may provide only the following legal services in Australia—
(a) doing work, or transacting business, concerning the law of a foreign country where the lawyer is registered or authorised by the foreign registration authority for the country;
(b) 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 considered by the designated local regulatory authority to be essential;
(c) legal services in relation to arbitration proceedings or conciliation, mediation and other forms of consensual dispute resolution;
(d) legal services of a kind specified in the Uniform Rules for the purposes of this section.
(3) Nothing in this Law authorises the foreign lawyer—
(a) to practise Australian law in Australia; or
(b) to appear in any court, except on the lawyer’s own behalf or as permitted by the Uniform Rules.
(4) Despite subsection (3), the 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.
70 Form of practice
(1) An Australian-registered foreign lawyer may (subject to any conditions attaching to the foreign lawyer’s Australian registration certificate) practise foreign law—
(a) on the foreign lawyer’s own account; or
(b) as a partner in a law firm; or
(ba) in a partnership with one or more Australian-registered foreign lawyers 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 volunteer at a community legal service or otherwise on a pro bono basis; or
(d) as a partner, director, officer or employee of an incorporated legal practice or unincorporated legal practice; or
(e) as an employee of a law practice; or
(f) as an employee of an Australian-registered foreign lawyer.
(2) This section does not entitle the Australian-registered foreign lawyer to practise Australian law in this jurisdiction.
s 70: Am 2016 No 60, sec 7.
Division 6 Miscellaneous
71 Uniform Rules for foreign lawyers
The Uniform Rules may make provision with respect to the following—
(a) any aspect of Australian registration certificates, including their grant and renewal and the imposition of conditions including conditions restricting practising entitlements;
(b) without limiting paragraph (a)—
(i) applications for the grant or renewal of Australian registration certificates, including the disclosure of matters relevant to an applicant’s eligibility and suitability for the grant or renewal of Australian registration certificates; and
(ii) the refusal of applications for Australian registration certificates; and
(iii) the imposition of conditions on Australian registration certificates;
(c) the conduct of the practice of foreign law in Australia by foreign lawyers.
72 Objectives
The objectives of this Part are—
(a) to provide procedures for the variation, suspension or cancellation of Australian practising certificates and Australian registration certificates; and
(b) to provide show cause procedures for certain events or matters relating to the grant, renewal or continued holding of Australian practising certificates and Australian registration certificates.
Note
The refusal, suspension or cancellation of a person’s Australian practising certificate results in the person becoming a disqualified person.
73 References to certificate
The term certificate in this Part refers to an Australian practising certificate or an Australian registration certificate.
74 Variation, suspension or cancellation for minor matters, or at request or with concurrence
(1) The designated local regulatory authority may vary a certificate for a formal or clerical reason or in another way that does not adversely affect the holder’s interests.
(2) The designated local regulatory authority may vary, suspend or cancel a certificate at the request of or with the concurrence of the holder.
75 Variation, suspension or cancellation at direction of tribunal
The designated local regulatory authority must vary, suspend or cancel a certificate at the direction of the designated tribunal under section 302.
76 Variation, suspension or cancellation under Division 3 or 4
The designated local regulatory authority may vary, suspend or cancel a certificate in accordance with—
(a) Division 3 on a ground referred to in that Division; or
(b) Division 4 in relation to an automatic show cause event or a designated show cause event.
77 Immediate variation or suspension before or during consideration of proposed action
(1) This section applies if the designated local regulatory authority is considering whether to start, continue or complete action under this Part in relation to a certificate and the designated local regulatory authority considers it necessary in the public interest to vary or suspend the certificate immediately.
(2) The designated local regulatory authority may immediately vary or suspend the certificate, by written notice given to the holder, until the earlier of the following—
(a) the time at which the designated local regulatory authority informs the holder of the designated local regulatory authority’s decision under this Part;
(b) the end of the period of 56 days after the notice is given to the holder under this section.
(3) The holder may make written representations to the designated local regulatory authority about the variation or suspension, and the designated local regulatory authority must consider the representations.
(4) The designated local regulatory authority may at any time revoke a condition imposed by the variation under this section, whether or not in response to any written representations made to it by the holder.
78 Lifting of suspension and renewal during suspension
(1) The designated local regulatory authority may lift the suspension of a certificate imposed under this Part at any time, whether or not in response to any written representations made to it by the holder, but must not do so inconsistently with an order of the designated tribunal in a case where the suspension was imposed at the direction of the designated tribunal.
(2) The designated local regulatory authority may renew a certificate while it is suspended under this Part if the end of the period of its currency is imminent, but the renewed certificate remains suspended until it is cancelled or the suspension is lifted.
79 Matters involving convictions
(1) If a certificate is varied, suspended or cancelled under this Part because the holder has been convicted of an offence, the Supreme Court may, on the application of the holder, order that decision be stayed until—
(a) the end of the time to appeal against the conviction; and
(b) if an appeal is made against the conviction—the appeal is finally decided, lapses or otherwise ends.
(2) A variation, suspension or cancellation referred to in subsection (1) does not have effect during any period in respect of which the stay is in force.
(3) If a certificate is varied, suspended or cancelled under this Part because the holder has been convicted of an offence and the conviction is quashed—
(a) the variation 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.
80 Notice to be given of interjurisdictional action
(1) If the name of the holder of a certificate has been removed from the Supreme Court roll for another jurisdiction, the holder must, as soon as practicable, give the designated local regulatory authority a written notice of the removal.
Civil penalty: 50 penalty units.
(2) If an authority or tribunal has, under a corresponding law, made a recommendation in relation to the holder of a certificate that—
(a) the person’s name be removed from the Supreme Court roll for this jurisdiction; or
(b) the person’s certificate be suspended or cancelled; or
(c) a certificate not be granted to the person for a period; or
(d) conditions be imposed on the person’s certificate—
the person must, as soon as practicable, give the designated local regulatory authority a written notice of the recommendation.
Penalty: 50 penalty units.
(3) Subsections (1) and (2)(a) do not apply where the name has been removed from the Supreme Court roll for another jurisdiction under a provision that corresponds to the relevant provisions of section 23.
Note
See section 24 for the requirement for a person whose name is on the Supreme Court roll for this jurisdiction to give a separate notice to the designated local roll authority if the person’s name is removed from the Supreme Court roll for another jurisdiction.
81 Notice to be given to certificate holder
The designated local regulatory authority must give written notice of any variation, suspension or cancellation of a certificate to the holder or former holder, except where he or she has died.
82 Grounds for action under this Division
(1) The designated local regulatory authority may vary, suspend or cancel a certificate under this Division on the ground that—
(a) the holder has contravened a condition of the certificate; or
(b) the holder has failed without reasonable excuse to comply with a requirement under Chapter 7 made in connection with an investigation of the holder in connection with this Chapter or has committed an offence under Chapter 7 in connection with any such investigation; or
(c) a local regulatory authority has made a recommendation to that effect under section 278, 299(1)(g) or 466(7); or
(d) in the case of an Australian practising certificate—the designated local regulatory authority reasonably believes that the holder is unable to fulfil the inherent requirements of an Australian legal practitioner.
Note
Section 227 empowers the designated local regulatory authority to suspend an Australian practising certificate or Australian registration certificate for failure to pay an annual contribution or a levy.
(2) The designated local regulatory authority may vary or suspend a certificate under this Division (if it considers it appropriate to do so having regard to the seriousness of the offence concerned and to the public interest) on the ground that the holder has been charged with a serious offence, a tax offence or an offence specified in the Uniform Rules for the purposes of this section and—
(a) the charge has not been determined; or
(b) the holder has been convicted of the offence but proceedings taken or likely to be taken in relation to the offence have not been concluded.
(3) The variation or suspension referred to in subsection (2) has effect until the earliest of the following occurs—
(a) the designated local regulatory authority revokes it;
(b) the end of the period specified by the designated local regulatory authority;
(c) if the holder is convicted of the offence—28 days after the day of the conviction;
(d) if the charge is dismissed—the day of the dismissal.
(4) The designated local regulatory authority may recommend to another designated local regulatory authority that consideration be given as to whether the holder of an Australian practising certificate is, or may be, unable to fulfil the inherent requirements of an Australian legal practitioner (as referred to in subsection (1)(d)).
(5) Subsection (4) does not by implication limit the powers of any local regulatory authority.
s 82: Am 2016 No 60, sec 8.
83 Local regulatory authority to give notice before acting under this Division
If the designated local regulatory authority considers that a certificate should be varied, suspended or cancelled on a ground specified in section 82, it must give the holder notice in writing—
(a) stating that it proposes to take that action and the ground or grounds for the proposed action; and
(b) if it proposes to vary or suspend the certificate, stating the proposed variation or period of suspension, as the case requires; and
(c) inviting the holder to respond in writing to the designated local regulatory authority within a specified period (not being less than 7 days nor more than 28 days after the notice is given) as to why the proposed action should not be taken.
84 Action taken after giving notice
If the designated local regulatory authority—
(a) has given notice under section 83 to the holder of a certificate of its proposed action; and
(b) the time specified in the notice for a response from the holder has expired—
it may, after considering any response made by the holder, by notice in writing given to the holder, take the proposed action or take less onerous action that it considers appropriate.
Subdivision 1 Preliminary
85 Show cause events
Show cause events are of 2 kinds, as follows—
(a) automatic show cause events;
(b) designated show cause events.
Subdivision 2 Automatic show cause events
86 Nature of automatic show cause events
An automatic show cause event is any of the following in relation to a person who is an applicant for or the holder of a certificate—
(a) a bankruptcy-related event;
(b) his or her conviction for a serious offence or a tax offence, whether or not—
(i) the offence was committed while he or she was engaging in legal practice as an Australian legal practitioner or was practising foreign law as an Australian-registered foreign lawyer; or
(ii) other persons are prohibited from disclosing the identity of the offender;
(c) an event of a kind specified in the Uniform Rules for the purposes of this section.
87 Automatic show cause events—applicants
(1) This section applies if an automatic show cause event has occurred at any time in relation to an applicant for the grant or renewal of a certificate.
(2) As part of the application, the applicant must provide to the designated local regulatory authority a statement—
(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 certificate.
(3) However, the applicant need not provide a statement under subsection (2) if the applicant (as a previous applicant for the grant or renewal of a certificate or as the holder of a certificate) has previously provided to the designated local regulatory authority a statement under this Part explaining why, despite the show cause event, he or she considers himself or herself to be a fit and proper person to hold a certificate.
88 Automatic show cause events—holders
(1) This section applies to an automatic show cause event that occurs in relation to the holder of a certificate.
(2) The holder must, in accordance with subsection (3), give the designated local regulatory authority—
(a) a written notice stating that the show cause event occurred; and
(b) a written statement explaining why, despite the show cause event, the holder considers himself or herself to be a fit and proper person to hold a certificate.
(3) The holder must give the designated local regulatory authority—
(a) the notice within 7 days after the show cause event occurred; and
(b) the statement within 28 days after the show cause event occurred or a longer period allowed by the designated local regulatory authority (not exceeding the maximum period specified in the Uniform Rules) on application made by the holder within the applicable period.
(4) The designated local regulatory authority may nevertheless accept a statement received out of time.
89 Automatic show cause events—action by local regulatory authority
(1) If the applicant or holder gives a statement required by this Subdivision, the designated local regulatory authority must determine whether the person concerned is a fit and proper person to hold a certificate.
(2) The designated local regulatory authority may vary, suspend or cancel, or may refuse to renew, a certificate if the applicant or holder—
(a) fails to provide a statement as required by this Subdivision; or
(b) has provided a statement in accordance with this Subdivision but the designated local regulatory authority does not consider that the applicant or holder has shown in the statement that, despite the show cause event, he or she is a fit and proper person to hold a certificate (or can be considered such a fit and proper person if the designated local regulatory authority is satisfied that doing so is warranted in the circumstances); or
(c) has failed without reasonable excuse to comply with a requirement under Chapter 7 made in connection with an investigation of the show cause event concerned or has committed an offence under that Chapter in connection with any such investigation.
(3) If the designated local regulatory authority determines that the applicant or holder is such a fit and proper person (or can be considered such a fit and proper person if the designated local regulatory authority is satisfied that doing so is warranted in the circumstances), it—
(a) must take no further action in relation to the show cause event; but
(b) may impose a discretionary condition that it considers appropriate in the circumstances.
(4) In determining a matter under this section, the designated local regulatory authority—
(a) may, but need not, conduct an investigation into the matter; and
(b) is not limited to making its determination, or conducting any such investigation, on the basis of just the automatic show cause event concerned; and
(c) may have regard to the facts and circumstances that surround, arise in connection with, relate to or give rise to the automatic show cause event concerned.
Subdivision 3 Designated show cause events
90 Nature of designated show cause events
A designated show cause event is the service of a notice on a holder of a certificate—
(a) alleging—
(i) in the case of a holder of an Australian practising certificate—that the holder has engaged in legal practice outside the terms of a condition restricting his or her practising entitlements; or
(ii) in the case of a holder of an Australian registration certificate—that the holder has provided legal services not permitted by or under this Law; or
(iii) in the case of a holder of an Australian practising certificate who is required to have professional indemnity insurance—that the holder does not have, or no longer has, professional indemnity insurance that complies with this Law in relation to the certificate; or
(iv) a matter of a kind specified in the Uniform Rules for the purposes of this section; and
(b) requiring the holder to provide a statement showing cause why the designated local regulatory authority should not take action, specified in the notice, to vary, suspend or cancel the certificate.
91 Designated show cause events—holders
(1) The holder of a certificate in relation to whom a designated show cause event occurs must, in accordance with subsection (2), give the designated local regulatory authority a written statement explaining why, despite the show cause event, the holder considers himself or herself to be a fit and proper person to hold a certificate.
(2) The holder must give the designated local regulatory authority the statement within 28 days after service of the notice of the designated show cause event or a longer period allowed by the designated local regulatory authority (not exceeding the maximum period specified in the Uniform Rules) on application made by the holder within that period of 28 days.
(3) The designated local regulatory authority may nevertheless accept a statement received out of time.
92 Designated show cause events—action by local regulatory authority
(1) If the holder provides a statement required by this Subdivision, the designated local regulatory authority must determine whether the person concerned is a fit and proper person to hold a certificate.
(2) The designated local regulatory authority may vary, suspend or cancel, or may refuse to renew, a certificate if the holder—
(a) fails to provide a statement as required by this Subdivision; or
(b) has provided a statement in accordance with this Subdivision but the designated local regulatory authority does not consider that the holder has shown in the statement that, despite the show cause event, he or she is a fit and proper person to hold a certificate (or can be considered such a fit and proper person if the designated local regulatory authority is satisfied that doing so is warranted in the circumstances); or
(c) has failed without reasonable excuse to comply with a requirement under Chapter 7 made in connection with an investigation of the show cause event concerned or has committed an offence under that Chapter in connection with any such investigation.
(3) If the designated local regulatory authority determines that the person is such a fit and proper person (or can be considered such a fit and proper person if the designated local regulatory authority is satisfied that doing so is warranted in the circumstances), it must take no further action in relation to the show cause event but may impose a discretionary condition that it considers appropriate in the circumstances.
(4) If the designated local regulatory authority determines that the person is not such a fit and proper person (or cannot be so considered such a fit and proper person), it may take the action specified in the notice referred to in section 90 or take less onerous action that the designated local regulatory authority considers appropriate.
(5) In determining a matter under this section, the designated local regulatory authority—
(a) may, but need not, conduct an investigation into the matter; and
(b) is not limited to making its determination, or conducting any such investigation, on the basis of just the designated show cause event concerned; and
(c) may have regard to the facts and circumstances that surround, arise in connection with, relate to or give rise to the designated show cause event concerned.
(6) The designated local regulatory authority is not to deal with a matter under this section if the matter has previously been the subject of investigation or determination under this Law unless the designated local regulatory authority is satisfied there are exceptional circumstances for doing so.
93 Events or matters occurring before admission or registration
If an event or matter occurred before a person was first admitted to the Australian legal profession or first registered as a foreign lawyer, the designated local regulatory authority may decide to take no action under this Part in connection with the event or matter if—
(a) the person disclosed the event or matter to the designated local regulatory authority in an application for a compliance certificate or for a declaration of early assessment of suitability for a compliance certificate or in his or her first application for an Australian registration certificate; or
(b) the designated local regulatory authority is satisfied that it is appropriate to do so given the passage of time and any other circumstances the designated local regulatory authority considers relevant.
94 Restriction on making further applications
(1) If the designated local regulatory authority refuses to grant or renew or cancels a certificate under this Part, the designated local regulatory authority may also decide that the person concerned is not entitled to apply for a certificate for a specified period not exceeding 5 years.
(2) That person is accordingly not entitled to apply for a certificate during that period.
(3) The designated local regulatory authority must give the person concerned written notice of the designated local regulatory authority’s decision under this section.
95 Consideration and investigation of applicants or holders
(1) In considering whether or not to grant, renew, vary, suspend or cancel a certificate, the designated local regulatory authority may, by notice to the applicant or holder, require the applicant or holder—
(a) to give it specified documents or information; or
(b) to be medically examined by a medical practitioner nominated by the designated local regulatory authority; or
(c) to provide a report from a Commissioner of Police as to whether the applicant or holder has been convicted or found guilty of an offence in Australia; or
(d) to cooperate with any inquiries by the designated local regulatory authority that it considers appropriate.
(2) A failure to comply with a notice under subsection (1) by the date specified in the notice and in the way required by the notice is a ground for making an adverse decision in relation to the action being considered by the designated local regulatory authority.
96 Deferral of action or temporary renewal for limited purposes
The designated local regulatory authority may, at its discretion, for the purpose of enabling the proper arrangement of the affairs of the holder of a certificate who is the subject of action or proposed action under this Part, defer taking the action, or renew the certificate, for a period that the designated local regulatory authority considers necessary to achieve that purpose.
97 Relationship of this Part with Chapter 5
(1) Nothing in this Part prevents a matter to which this Part relates from being dealt with under Chapter 5, whether or not it is being, or has already been, dealt with under this Part.
(2) Without limitation, a matter to which this Part relates may be made the subject of a complaint and dealt with under Chapter 5 even if adverse action has been taken under this Part against the Australian legal practitioner or Australian-registered foreign lawyer concerned.
98 Uniform Rules
The Uniform Rules may make provision with respect to the variation, suspension or cancellation of certificates, the show cause procedure under this Part and any other matter relating to this Part.
99 Objective
The objective of this Part is to provide a right to appeal against or to seek a review of certain decisions of the designated local regulatory authority in relation to Australian practising certificates and Australian registration certificates. A reference in this Part to such a certificate is a reference to a certificate granted or to be granted in this jurisdiction.
100 Right of appeal or review about Australian practising certificates
(1) An applicant for or the holder of an Australian practising certificate may, in accordance with applicable jurisdictional legislation, appeal to the designated tribunal against, or seek a review by that tribunal of, any of the following decisions of the designated local regulatory authority under this Chapter—
(a) a decision to refuse to grant or renew the Australian practising certificate;
(b) a decision to vary, suspend or cancel the Australian practising certificate or, without limitation, to impose a condition on the Australian practising certificate;
(c) a decision that a person is not entitled to apply for an Australian practising certificate for a specified period (see section 94).
(2) An appeal or review under this section may be made to review the merits of the decision concerned.
(3) The designated tribunal may make any order it considers appropriate on an appeal or review under this section, including any of the following orders—
(a) an order directing the designated local regulatory authority to grant, or to refuse to grant, an application for an Australian practising certificate;
(b) an order directing the designated local regulatory authority to suspend for a specified period or cancel an Australian practising certificate, or to reinstate an Australian practising certificate that has been suspended or cancelled;
(c) an order that an applicant or holder is not entitled to apply for the grant of an Australian practising certificate for a specified period not exceeding 5 years;
(d) an order directing the designated local regulatory authority to vary an Australian practising certificate in the manner specified by the designated tribunal.
(4) Except to the extent (if any) that may be ordered by the designated tribunal, the lodging of an appeal or application for review under this section does not stay the effect of the refusal, variation, suspension or cancellation concerned.
(5) The designated tribunal may not order the imposition of conditions on an Australian practising certificate without first taking submissions from the designated local regulatory authority.
(6) In proceedings on an appeal or review under this section, fresh evidence, or evidence in addition to or in substitution for matters considered by the designated local regulatory authority, may be given.
(7) In proceedings on an appeal or review under this section in which the question of whether a person is a fit and proper person to hold an Australian practising certificate is at issue—
(a) the onus of establishing that a person is a fit and proper person to hold an Australian practising certificate is on the person asserting that fact; and
(b) it is to be presumed in the absence of evidence to the contrary that any statement of facts in the reasons of the designated local regulatory authority for the decision concerned is a correct statement of the facts in the matter; and
(c) a document that appears to be a document issued for the purposes of or in connection with any application, proceedings or other matter arising under the Bankruptcy Act is admissible in the proceedings and is evidence of the matters stated in the document.
(8) The designated local regulatory authority is to give effect to any order of the designated tribunal under this section.
Note
Jurisdictional legislation may provide a right of appeal against or a right of review of the designated tribunal’s decision.
101 Right of appeal or review about Australian registration certificates
(1) An applicant for or the holder of an Australian registration certificate may, in accordance with applicable jurisdictional legislation, appeal to the designated tribunal against, or seek a review by that tribunal of, any of the following decisions of the designated local regulatory authority under this Chapter—
(a) a decision to refuse to grant or renew the Australian registration certificate;
(b) a decision to vary, suspend or cancel the Australian registration certificate;
(c) a decision that a person is not entitled to apply for an Australian registration certificate for a specified period (see section 94).
(2) An appeal or review under this section may be made to review the merits of the decision concerned.
(3) The designated tribunal may make any order it considers appropriate on the appeal or review.
(4) Except to the extent (if any) that may be ordered by the designated tribunal, the lodging of an appeal or application for review does not stay the effect of the refusal, variation, suspension or cancellation concerned.
(5) The designated tribunal may not order the imposition of conditions on an Australian registration certificate without first taking submissions from the designated local regulatory authority.
(6) In proceedings on an appeal or review under this section, fresh evidence, or evidence in addition to or in substitution for matters considered by the designated local regulatory authority, may be given.
(7) The designated local regulatory authority is to give effect to any order of the designated tribunal under this section.
Note
Jurisdictional legislation may provide a right of appeal against or a right of review of the designated tribunal’s decision.
102 Application of this Division
This Division applies to a law practice that is an incorporated legal practice or an unincorporated legal practice.
103 Services that may be provided
A law practice to which this Division applies is entitled to engage in legal practice in this jurisdiction, and may also provide other services.
104 Notice of intention to engage in or terminate legal practice
(1) If an entity intends to engage in legal practice in this jurisdiction as a law practice to which this Division applies, it must give the designated local regulatory authority a notice of that intention within the period specified in the Uniform Rules.
(2) An entity must not engage in legal practice in this jurisdiction as a law practice to which this Division applies if it has not given the designated local regulatory authority the notice required under subsection (1).
Civil penalty: 50 penalty units.
(3) If a law practice to which this Division applies ceases to engage in legal practice in this jurisdiction, it must give the designated local regulatory authority a notice of that fact within the period specified in the Uniform Rules.
Civil penalty: 50 penalty units.
(4) The Uniform Rules may make provision for determining whether and when an entity ceases to engage in legal practice in this jurisdiction.
(5) To be effective, a notice under this section must comply with and be given in accordance with the Uniform Rules. In particular, the Uniform Rules may—
(a) specify the period within which a notice must be given; and
(b) provide for a notice to be given on behalf of an entity.
(6) A notice given by an entity under subsection (1) operates until it gives notice under subsection (3).
105 Principals
A law practice to which this Division applies must have at least one authorised principal.
106 Law practice without principal
(1) A law practice to which this Division applies contravenes this section if it does not have any authorised principals for a period exceeding 7 days.
Civil penalty: 50 penalty units.
(2) If a law practice to which this Division applies ceases to have any authorised principals, the law practice must notify the designated local regulatory authority of that fact within 7 days.
Civil penalty: 50 penalty units.
(3) A law practice to which this Division applies must not provide legal services in this jurisdiction during any period it is non-compliant with relevant requirements under this section.
Penalty: 250 penalty units.
(4) A law practice to which this Division applies that contravenes subsection (1) is taken to be non-compliant with relevant requirements under this section for the period from the end of the period of 7 days until it has at least one authorised principal.
(5) The designated local regulatory authority may, if it thinks it appropriate, appoint an Australian legal practitioner who is an employee of the law practice or another person nominated by the designated local regulatory authority, in the absence of an authorised principal, to exercise the responsibilities of a principal under this Law.
Note
Section 34 provides for the responsibilities of each principal of a law practice.
(6) An Australian legal practitioner is not eligible to be appointed under this section unless the practitioner is an authorised principal.
(7) The appointment under this section of a person to exercise functions of an authorised principal does not, for any other purpose, confer or impose on the person any of the other functions of a principal of the law practice.
(8) A law practice does not contravene subsection (1) during any period during which a person holds an appointment under this section in relation to the law practice.
107 Disclosure obligations
(1) This section applies if a person engages a law practice to which this Division applies to provide services that the person might reasonably assume to be legal services and the law practice provides both legal services and other services.
(2) The law practice must, in accordance with the Uniform Rules, make a disclosure to the person informing the person—
(a) whether the services are legal services; and
(b) of any other matters specified in the Uniform Rules for the purposes of this section.
(3) If a proper disclosure has not been made under this section, the standard of care owed by the law practice in respect of the service is the standard that would be applicable if the service were a legal service that had been provided by an Australian legal practitioner.
108 External administration proceedings under Corporations Act or other legislation
(1) This section applies to—
(a) proceedings in any court under Chapter 5 of the Corporations Act relating to a corporation that is or was an incorporated legal practice and that is or was in the process of becoming an externally-administered corporation under that Act; and
(b) proceedings in any court under other legislation for the external administration (however expressed) of an incorporated legal practice.
(2) The designated local regulatory authority is entitled to intervene in the proceedings, unless the court determines that 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 law practice.
(4) Subsection (3) does not authorise the court to make any decision that is contrary to a specific provision of—
(a) in relation to proceedings referred to in subsection (1)(a)—the Corporations Act; or
(b) in relation to proceedings referred to in subsection (1)(b)—any legislation applicable to the incorporated legal practice.
(5) The provisions of subsections (2) and (3) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of Chapter 5 of that Act.
Note
Section 5G of the Corporations Act provides that, if a State or Territory law declares a provision of a State or Territory law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State or Territory provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.
109 Incorporated legal practice that is subject to receivership under this Law 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 Uniform Law receiver; and
(b) the appointment of a Corporations Act administrator.
(2) The Uniform Law receiver is under a duty to notify the Corporations Act administrator of the appointment of the Uniform Law receiver, whether the appointment precedes, follows or is contemporaneous with the appointment of the Corporations Act administrator.
(3) The Uniform Law 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 111 have been commenced.
(4) The Supreme Court may make any orders it considers appropriate, and no liability attaches to the Uniform Law receiver or the Corporations Act administrator for any act or omission done by the receiver or administrator in good faith for the purpose of carrying out or acting in accordance with the orders.
(5) The designated local regulatory authority is entitled to intervene in the proceedings, unless the court determines that 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 the purposes of section 5G of the Corporations Act in relation to the provisions of Chapter 5 of that Act.
(7) In this section—
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 is appointed to exercise powers under that Act and who is specified, or of a class specified, in the Uniform Rules for the purposes of this definition;
Uniform Law receiver means a receiver appointed under Part 6.5.
110 Incorporated legal practice that is subject to receivership under this Law 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 Uniform Law receiver; and
(b) the appointment of an external administrator.
(2) The Uniform Law receiver is under a duty to notify the external administrator of the appointment of the Uniform Law receiver, whether the appointment precedes, follows or is contemporaneous with the appointment of the external administrator.
(3) The Uniform Law 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 Supreme Court may make any orders it considers appropriate, and no liability attaches to the Uniform Law receiver or the external administrator for any act or omission done by the receiver or administrator in good faith for the purpose of carrying out or acting in accordance with the orders.
(5) The designated local regulatory authority is entitled to intervene in the proceedings, unless the court determines that the proceedings do not concern or affect the provision of legal services by the incorporated legal practice.
(6) In this section—
external administrator means a person who is appointed to exercise powers under other legislation (whether or not of this jurisdiction) and who is specified, or of a class specified, in the Uniform Rules for the purposes of this definition;
Uniform Law receiver means a receiver appointed under Part 6.5.
111 Extension 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 director, 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 a director, officer or 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.
112 Relationship of Law to constitution of, or legislation establishing, incorporated legal practice
(1) The provisions of this Law or the Uniform Rules that apply to an incorporated legal practice prevail, to the extent of any inconsistency, over the constitution or other constituent documents of the practice.
(2) The provisions of this Law or the Uniform Rules 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 Uniform Rules.
(3) Subsection (2) applies to a corporation that is established by or under a law (whether or not of this jurisdiction) with power to engage in legal practice, but is not a company within the meaning of the Corporations Act.
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1.1 Introduction
1 Citation
This Law may be cited as the Legal Profession Uniform Law (NSW).
2 Commencement
This Law commences in a jurisdiction as provided by the Act of that jurisdiction that applies this Law as a law of that jurisdiction.
3 Objectives
The objectives of this Law are to promote the administration of justice and an efficient and effective Australian legal profession, by—
(a) providing and promoting interjurisdictional consistency in the law applying to the Australian legal profession; and
(b) ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and
(c) enhancing the protection of clients of law practices and the protection of the public generally; and
(d) empowering clients of law practices to make informed choices about the services they access and the costs involved; and
(e) promoting regulation of the legal profession that is efficient, effective, targeted and proportionate; and
(f) providing a co-regulatory framework within which an appropriate level of independence of the legal profession from the executive arm of government is maintained.
4 Extraterritorial operation of this Law
The operation of this Law is, as far as possible, to include operation, according to its terms, in relation to the following—
(a) things situated within or outside the territorial limits of this jurisdiction;
(b) acts, transactions and matters done, entered into or occurring within or outside the territorial limits of this jurisdiction;
(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction.
Who is affected
Why it matters (official aims and how they are implemented mechanically)
Practical consequences, incentives and trade‑offs (mechanics cited)
Compliance and administrative burden. The Law creates many ongoing compliance tasks for practices: detailed trust‑record keeping (s147), annual external examinations (s155), mandatory notifications and prompt reporting of irregularities (s154), costs disclosure and billing rules (ss174–192), and insurance/fidelity payments (ss211, 225). These are concrete recurring costs for practices (fees, time, systems).
Who pays. Costs of compliance and regulation fall mostly on law practices and lawyers: external exam and investigation costs (s160, s166) are payable by the practice; fidelity contributions and levies are payable by practising‑certificate applicants/members (s225–226); fees for Council/Commissioner functions may be fixed in the Uniform Rules or by jurisdictional legislation (s474).
Who decides and where discretion sits. Many discretionary decisions rest with the designated local regulatory authority (granting compliance certificates, imposing discretionary conditions, initiating investigations, imposing management system directions) (eg ss17–19, 53, 95, 256–257). The Council and Commissioner set and monitor Uniform Rules, guidelines and interjurisdictional consistency (ss394–396, 407–410). The Standing Committee retains a veto role over Uniform Rules in defined circumstances (s428(2)–(3)). These multiple layers create administrative discretion at both national (Council/Commissioner) and local (designated local regulatory authority) levels.
Enforcement intensity and remedies. The law combines criminal offences, civil penalties and professional discipline (ss451–459, 452–456, 296–299, 302). Remedies range from fines and pecuniary penalty orders to suspension, cancellation of certificates and removal from Supreme Court rolls (eg ss48, 302, 453). Injunctions are available to restrain contraventions (ss447–450).
Client protection mechanisms are concentrated and targeted: trust‑account rules (Part 4.2), fidelity funds and claims processes (Part 4.5), and compulsory insurance (Part 4.4) give clients explicit recovery routes (ss129–141, 222–246). Those are direct, concentrated benefits for clients who suffer loss.
Effects on private choice, competition and business forms. The Law explicitly allows a range of business structures (s32) but imposes regulatory conditions that can limit some commercial activities (eg restrictions on law practices promoting/operating managed investment schemes in s258). Registration and insurance requirements and compliance costs may raise the barrier to entry for small/new practices, with potential effects on competition and prices.
Interjurisdictional complexity and cross‑border mechanisms. The Law contains elaborate rules for interjurisdictional operation (s4), the treatment of non‑participating jurisdictions (Schedule 3), and for allocating fidelity liabilities across jurisdictions in multi‑jurisdiction defaults (ss220, 250–251). That machinery reduces forum‑shopping risk but introduces complex cross‑border assessment rules.
Implementation risks and opportunity costs. The framework depends on multiple rule‑making instruments (Uniform Rules and Uniform Regulations), delegation and substantial administrative capacity (ss419–431, 397–400). Effective uniformity therefore requires coordination, ongoing rule development and consistent enforcement across jurisdictions; failures or delays in rule‑making (e.g. thresholds in s174) affect uniform operation. Administrative costs for governments and regulated entities are an identifiable opportunity cost.
Concrete behavioural changes the Law creates
Concentrated benefits and diffuse costs (documented mechanisms)
Where the law vests discretion that materially affects regulated parties
Limitations on foreign practice and substitution effects
Implementation and compliance risks
Sections cited for key mechanics
Summary statement: The Legal Profession Uniform Law establishes a national‑style, rule‑based regulatory architecture for participating Australian jurisdictions — standardising admission, practising entitlements, trust‑money controls, cost disclosure, insurance and client‑protection mechanisms while creating institutional bodies (Council, Commissioner, local regulators) that make and enforce detailed rules. It shifts many operational burdens onto law practices (record‑keeping, audits, insurance, contributions) and concentrates client protections (fidelity cover, trust‑account oversight), while preserving local decision‑making through designated local regulatory authorities and a multilayered appeals and tribunal structure.
5 Jurisdictional arrangements
(1) The arrangements set out in this section have effect, and are to be observed, in relation to this Law.
(2) The host jurisdiction for this Law is Victoria.
(3) The host Attorney-General for this Law is the Attorney-General of Victoria.
(4) The host jurisdiction for the Council and the Commissioner is New South Wales.
(5) The host Attorney-General for the Council and the Commissioner is the Attorney-General of New South Wales.
(6) The primary office of the Council and the primary office of the Commissioner are to be located in New South Wales.
Part 1.2 Interpretation
6 Definitions
(1) In this Law—
ADI means an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth;
admission or admission to the Australian legal profession means—
(a) admission by the Supreme Court of a participating jurisdiction as a lawyer (however expressed), whether before, on or after the commencement of this Law in that jurisdiction; or
(b) admission by the Supreme Court of a non-participating jurisdiction as a lawyer, a legal practitioner, a barrister, a solicitor, a barrister and solicitor, or a solicitor and barrister, whether before, on or after the commencement of this Law in any jurisdiction, otherwise than by the grant or issue of a practising certificate.
Without limiting the meaning of the terms admission or admission to the Australian legal profession, those terms include readmission;
Admission Rules means the provisions of the Uniform Rules that are designated as Admission Rules (see section 420);
Admissions Committee means the Admissions Committee established under section 402;
affairs of a law practice includes the following—
(a) all accounts and records required by or under this Law or the Uniform Rules to be maintained by the law practice or an associate or former associate of the law practice;
(b) other records of the law practice or an associate or former associate of the law practice;
(c) any transaction—
(i) to which the law practice or an associate or former associate of the law practice was or is a party; or
(ii) in which the law practice or an associate or former associate of the law practice has acted for a party;
another jurisdiction means a jurisdiction other than this jurisdiction;
another Supreme Court means the Supreme Court of another jurisdiction;
APRA means the Australian Prudential Regulation Authority;
ASIC means the Australian Securities and Investments Commission;
ASIC Act means the Australian Securities and Investments Commission Act 2001 of the Commonwealth;
associate of a law practice means a person who is one or more of the following—
(a) a principal of the law practice;
(b) a partner, director, officer, employee or agent of the law practice;
(c) an Australian legal practitioner who is a consultant to the law practice;
associated third party payer—see section 171;
Australian Accounting Standards means the standards issued by the Australian Accounting Standards Board;
Australian Bar Association means the association named The Australian Bar Association;
Australian financial services licence has the same meaning as it has in Chapter 7 of the Corporations Act;
Australian lawyer means a person admitted to the Australian legal profession in this jurisdiction or any other jurisdiction;
Australian legal practitioner means an Australian lawyer who holds a current Australian practising certificate;
Australian Legal Profession Register means the register referred to in section 432;
Australian practising certificate means—
(a) a practising certificate granted to an Australian lawyer under Part 3.3 of this Law as applied in a participating jurisdiction; or
(b) a practising certificate granted to an Australian lawyer under a law of a non-participating jurisdiction entitling the lawyer to engage in legal practice;
Australian-registered foreign lawyer means a person who holds a current Australian registration certificate;
Australian registration certificate means—
(a) a registration certificate granted to a foreign lawyer under Part 3.4 of this Law as applied in a participating jurisdiction; or
(b) a registration certificate granted to a foreign lawyer, or a document acknowledging the registration of a foreign lawyer, under a law of a non-participating jurisdiction entitling the lawyer to practise foreign law;
authorised ADI—see section 128;
authorised principal means a principal who is authorised by his or her Australian practising certificate to supervise others;
Note
Section 47(6) provides that an Australian practising certificate authorises the holder to supervise legal practice by others, unless the certificate is subject to a condition requiring the holder to engage in supervised legal practice or a condition to the effect that the holder may not supervise legal practice by others.
authorised representative has the same meaning as it has in Chapter 7 of the Corporations Act;
automatic show cause event—see section 86;
Bankruptcy Act means the Bankruptcy Act 1966 of the Commonwealth;
bankruptcy-related event, in relation to a person, means—
(a) his or her becoming bankrupt under the Bankruptcy Act (or the corresponding provisions of the law of a foreign country or external territory); or
(b) his or her being served with notice of a creditor’s petition presented to a court under section 43 of the Bankruptcy Act; or
(c) his or her presentation (as a debtor) of a declaration to the Official Receiver under section 54A of the Bankruptcy Act 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
(d) his or her applying to take the benefit of any law (whether Australian or otherwise) 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;
barrister means an Australian legal practitioner whose Australian practising certificate is subject to a condition that the holder is authorised to engage in legal practice as or in the manner of a barrister only;
business day means a day that is not a Saturday, Sunday, public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done;
certificate (in Part 3.5)—see section 73;
Chair of the Council—see clause 1 of Schedule 1;
Chapter 5 functions means—
(a) functions under Chapter 5; or
(b) functions under another provision of this Law relating to Chapter 5; or
(c) functions under the Uniform Rules relating to Chapter 5;
civil penalty and civil penalty provision—see section 452;
claim (in Part 4.5)—see section 219;
client includes a person to whom or for whom legal services are provided;
commercial or government client—see section 170;
Commissioner means the person appointed to or acting in the office of the Commissioner for Uniform Legal Services Regulation established by Part 8.3;
Commissioner of Police includes a person of equivalent status specified in jurisdictional legislation;
community legal service means an organisation (whether incorporated or not) that—
(a) holds itself out as—
(i) a community legal service; or
(ii) a community legal centre; or
(iii) an Aboriginal and Torres Strait Islander Legal Service;
whether or not it is a member of a State or Territory association of community legal centres, and whether or not it is accredited or certified by the National Association of Community Legal Centres; and
(b) is established and operated on a not-for-profit basis; and
(c) provides legal or legal-related services that—
(i) are directed generally to people who are disadvantaged (including but not limited to being financially disadvantaged) in accessing the legal system or in protecting their legal rights; or
(ii) are conducted in the public interest;
complaint—see section 265;
complaint investigation means an investigation of a complaint under section 282;
compliance audit means an audit under section 256;
compliance certificate means a certificate issued under section 19;
Note
Section 26(5) provides that, on a successful appeal against a refusal to issue a compliance certificate, the order of the Supreme Court may include a direction that the order has the same effect as a compliance certificate provided to the Court by the designated local regulatory authority.
concerted interjurisdictional default—see section 219;
conditional costs agreement—see section 181;
conditions includes terms, limitations and restrictions;
consumer matter—see section 269;
Continuing Professional Development Rules means the provisions of the Uniform Rules that are designated as Continuing Professional Development Rules (see section 420);
controlled money—see section 128;
conviction includes a finding of guilt, or the acceptance of a guilty plea by the court, whether or not a conviction is recorded;
corporate legal practitioner means an Australian legal practitioner who engages in legal practice only in the capacity of an in-house lawyer for his or her employer or a related entity, but does not include a government legal practitioner;
Corporations Act means the Corporations Act 2001 of the Commonwealth;
corresponding authority means—
(a) a person or body having functions under a corresponding law; or
(b) when used in the context of a person or body having functions under this Law in this jurisdiction—a person or body having corresponding functions under a corresponding law;
corresponding law means—
(a) a law of another jurisdiction that—
(i) corresponds to the relevant provisions of this Law as applied in this jurisdiction; or
(ii) is the principal legislation in the other jurisdiction for the regulation of the legal profession; or
(iii) is declared by the Uniform Regulations to be a law within this definition; but
(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;
costs assessment means an assessment of legal costs under Part 4.3;
costs assessor means—
(a) a person appointed by a court, judicial officer or other official to have the responsibility of conducting costs assessments; or
(b) a person or body designated by jurisdictional legislation to have that responsibility;
costs dispute—see section 269;
Council or Legal Services Council means the Legal Services Council established by Part 8.2;
default (in Part 4.5)—see section 219;
designated local regulatory authority means a person or body specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used;
designated local roll authority means a person or body specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used;
designated show cause event—see section 90;
designated tribunal means—
(a) a court or tribunal specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used; or
(b) a member or officer so specified or described of such a court or tribunal;
disqualified entity means an entity that is disqualified under section 120;
disqualified person means—
(a) a person whose name has been removed from a Supreme Court roll and who has not subsequently been admitted or readmitted by the Supreme Court of any jurisdiction; or
(b) a person who has been refused the grant or renewal of an Australian practising certificate and who has not been granted an Australian practising certificate at a later time; or
(c) a person whose Australian practising certificate is suspended (for the period of the suspension); or
(d) a person whose Australian practising certificate has been cancelled and who has not been granted an Australian practising certificate at a later time; or
(e) a person who is the subject of a decision under section 94 that the person is not entitled to apply for a certificate for a specified period; or
(f) a person who is disqualified under section 119;
engage in legal practice includes practise law or provide legal services, but does not include engage in policy work (which, without li
This is an opening excerpt, not the complete document.