Part 5A Legal Services Commissioner
59B Appointment of Commissioner
(1) The Governor may, on the recommendation of the Attorney General, appoint a person to be Legal Services Commissioner.
(2) The person so appointed is to be a person who, in the opinion of the Attorney General:
(a) is familiar with the nature of the legal system and legal practice (but need not be a legal practitioner), and
(b) possesses sufficient qualities of independence, fairness and integrity.
(3) The employment of the Commissioner is subject to Part 2A of the Public Sector Management Act 1988, but is not subject to Part 2 or Part 8 of that Act.
(4) The Commissioner may be appointed for a period of up to 7 years, despite anything to the contrary in section 42F of the Public Sector Management Act 1988.
(5) The Governor may remove the Commissioner from office only for misbehaviour, incapacity or incompetence, despite anything to the contrary in section 42Q of the Public Sector Management Act 1988.
59C Acting Commissioner
(1) The Attorney General may, from time to time, appoint a person to act in the office of the Commissioner during the illness or absence of the Commissioner (or during a vacancy in the office of Commissioner) and a person, while so acting, has all the functions of the Commissioner.
(2) The Attorney General may, at any time, remove a person from the office of acting Commissioner.
(3) The acting Commissioner is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Attorney General may from time to time determine.
59D Functions of Commissioner
(1) The Commissioner has, in accordance with this Act, the following functions:
(a) to receive complaints about professional misconduct or unsatisfactory professional conduct of legal practitioners and interstate legal practitioners,
(b) to assist and advise complainants and potential complainants in making and pursuing complaints (including assisting complainants to clarify their complaints and to put their complaints in writing),
(c) to initiate a complaint against a legal practitioner or an interstate legal practitioner,
(d) to investigate, or take over the investigation of, a complaint if the Commissioner considers it appropriate,
(e) to refer complaints to the appropriate Council for investigation or mediation in appropriate cases,
(f) to monitor investigations and give directions and assistance to Councils in connection with the investigation of complaints,
(g) to review the decisions of Councils to dismiss complaints or to reprimand legal practitioners or interstate legal practitioners in connection with complaints,
(h) to take over investigations or to institute proceedings in the Tribunal against legal practitioners or interstate legal practitioners following a review by the Commissioner,
(i) to conduct regular surveys of, and report on, the views and levels of satisfaction of complainants and respondent legal practitioners and interstate legal practitioners with the complaints handling and disciplinary system,
(j) to monitor the refusal to issue, cancellation and suspension of practising certificates under Part 3 on grounds relating to fitness to practise (for example, in connection with acts of bankruptcy, the commission of indictable offences or tax offences or failures to give required notifications),
(k) functions conferred on the Commissioner under Division 1AA of Part 3,
(l) to monitor generally the exercise of regulatory functions by the Councils (other than the imposition of conditions on practising certificates),
(m) to review barristers rules, solicitors rules and joint rules,
(n) to assist the Councils to promote community education about the regulation and discipline of the legal profession,
(o) to assist the Councils in the enhancement of professional ethics and standards, for example, through liaison with legal educators or directly through research, publications or educational seminars,
(p) to report on the Commissioner’s activities under this Act.
(2) The Commissioner may appear by barrister or solicitor before, and be heard by, the Supreme Court in the exercise of the functions of the Supreme Court under this Act or otherwise in relation to barristers or solicitors.
(3) The Commissioner has such other functions as are conferred or imposed on the Commissioner by or under this or any other Act.
Note. The Conveyancers Licensing Act 1995 confers on the Commissioner the function of dealing with complaints against licensed conveyancers.
59E Councils to provide information to Commissioner
(1) A Council must, within 7 days after receiving a notification from a legal practitioner that the legal practitioner has committed an act of bankruptcy, or been found guilty of an indictable offence or a tax offence, provide a copy of the notification to the Commissioner.
(2) A Council must, within 7 days after receiving a statement from a legal practitioner under section 38FB, provide a copy of the statement to the Commissioner.
(3) The Commissioner may, for the purpose of exercising the Commissioner’s functions, do any of the following:
(a) require a Council to provide information received by the Council that gives the Council reason to believe that a legal practitioner or an interstate legal practitioner has engaged in professional misconduct or unsatisfactory professional conduct within the meaning of Part 10,
(b) require a Council to provide information relating to an application for a practising certificate,
(c) require a Council to provide information relating to a notification made by a legal practitioner or interstate legal practitioner for the purposes of complying with this Act or the regulations,
(d) require a Council to notify the Commissioner of the Council’s intention to issue, refuse to issue, cancel or suspend a practising certificate.
(4) A requirement by the Commissioner under this section may relate to a specific case or may be made in general terms so as to relate to all cases or to a class of cases.
(5) A Council must take into account any representations made by the Commissioner on a matter under this section.
59F Protocols relating to monitoring of regulatory functions
The Commissioner may, in consultation with each of the Councils, develop protocols relating to the exercise of the Commissioner’s functions under section 59D (1) (j) and (l).
59G Annual report of Commissioner
(1) As soon as practicable after 30 June (but before 31 December) in each year, the Commissioner is required to prepare and forward to the Attorney General a report on his or her activities for the 12 months ending on 30 June in that year.
(2) The Attorney General is required to lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after receiving the report.
(3) The Commissioner is required to include the following information in the annual report for a year:
(a) the number and type of complaints made during the year (including the number and type made by the Commissioner and the number and type made by each Council),
(b) the sources of those complaints,
(c) the number of consumer disputes referred to mediation during the year and the results of mediation,
(d) the number and type of complaints investigated during the year by each Council, by the Commissioner and by an independent investigator under section 151,
(e) the number and type of complaints dismissed during the year by each Council and by the Commissioner,
(f) the number and type of complaints in respect of which a legal practitioner or interstate legal practitioner was reprimanded during the year by each Council and by the Commissioner,
(g) the number and type of complaints in respect of which proceedings were instituted in the Tribunal during the year by each Council and by the Commissioner,
(h) a summary of the results of proceedings in the Tribunal completed during the year,
(i) the number of complaints not finally dealt with at the end of the year (including the number at each stage of proceedings),
(j) the age of complaints not finally dealt with at the end of the year (that is, the number of those complaints made respectively in that year and in each previous year),
(k) time intervals involved in the complaints process,
(l) information about any review of a barristers rule, solicitors rule or joint rule requested by the Commissioner under this Act,
(m) information on the operation of the complaints process during the reporting year and any recommendations for legislative or other improvements to the complaints process,
(n) information about the costs incurred by the Commissioner during the reporting year, certified by the Auditor General,
(o) such other information as the Commissioner considers appropriate to be included or as the Attorney General directs to be included.
(4) The Commissioner may include in the annual report a report on the exercise of functions by the Commissioner referred to in section 59D (1) (j), (k) and (l).
(5) Matters included in a report must not identify individual clients, legal practitioners or interstate legal practitioners, unless their names have already lawfully been made public in connection with the refusal to issue, suspension or cancellation of a practising certificate or the complaint concerned.
59H Staff of Commissioner
(1) The staff of the Commissioner is (subject to this section) to be employed under Part 2 of the Public Sector Management Act 1988.
(2) The Commissioner may employ other staff with the approval of the Attorney General. Part 2 of the Public Sector Management Act 1988 does not apply to the employment of any such staff.
(3) The Commissioner may arrange for the use of the services of any staff (by secondment or otherwise) or facilities of a government agency or other public authority. Any staff of whose services the Commissioner makes use is taken to be staff of the Commissioner for the purposes of this Act.
(4) The Commissioner may, with the approval of the Attorney General, engage consultants or other persons for the purpose of getting assistance.
59I Delegation of functions
The Commissioner may delegate any of his or her functions (other than this power of delegation) to a member of the staff of the Commissioner or to a person of a class prescribed by the regulations.