Legal Profession Act 2004 No 112
Current version for 4 July 2014 to date (accessed 29 November 2014 at 08:39)
Chapter 2Part 2.4

Part 2.4 Legal practice by Australian legal practitioners

Division 1 Preliminary

39   Purposes

The purposes of this Part are as follows:
(a)  to facilitate the national practice of law by ensuring that Australian legal practitioners can engage in legal practice in this jurisdiction and to provide for the certification of Australian lawyers whether or not admitted in this jurisdiction,
(b)  to provide a system for the granting and renewing of local practising certificates.

Division 2 Legal practice in this jurisdiction by Australian legal practitioners

40   Entitlement of holder of Australian practising certificate to practise in this jurisdiction

An Australian legal practitioner is, subject to this Act, entitled to engage in legal practice in this jurisdiction.

Division 3 Local practising certificates generally

41   Local practising certificates

(1)  Practising certificates may be granted under this Part.
(2)  The Bar Council may, on application, grant a practising certificate to an Australian lawyer authorising the lawyer to practise as a barrister.
(3)  The Law Society Council may, on application, grant a practising certificate to an Australian lawyer authorising the lawyer to practise as a solicitor and barrister.
(4)  It is a statutory condition of a local practising certificate that the holder must not hold another local practising certificate, or an interstate practising certificate, that is in force during the currency of the first-mentioned local practising certificate.
(5)  (Repealed)

42   Suitability to hold local practising certificate

(1)  This section has effect for the purposes of section 48 (Grant or renewal of local practising certificate) or any other provision of this Act where the question of whether or not a person is a fit and proper person to hold a local practising certificate is relevant.
(2)  A Council may, in considering whether or not the person is a fit and proper person to hold a local practising certificate, take into account any suitability matter relating to the person, and any of the following, whether happening before or after the commencement of this section:
(a)  whether the person obtained an Australian practising certificate because of incorrect or misleading information,
(b)  whether the person has contravened a condition of an Australian practising certificate held by the person,
(c)  whether the person has contravened this Act or a corresponding law or the regulations or legal profession rules under this Act or a corresponding law,
(d)  whether the person has contravened:
(i)  an order of the Tribunal, or
(ii)  an order of a corresponding disciplinary body or of another court or tribunal of another jurisdiction exercising jurisdiction or powers by way of appeal or review of an order of a corresponding disciplinary body,
(e)  without limiting any other paragraph:
(i)  whether the person has failed to pay a required contribution or levy to the Fidelity Fund, or
(ii)  whether the person has contravened a requirement imposed by a Council about professional indemnity insurance, or
(iii)  whether the person has contravened a requirement of this Act or the regulations about trust money, or
(iv)  whether the person has failed to pay other costs, expenses or fines for which the person is liable under this Act or the regulations,
(f)  other matters the Council thinks appropriate.
(3)  A person may be considered a fit and proper person to hold a local practising certificate even though the person is within any of the categories of the matters referred to in subsection (2), if the Council considers that the circumstances warrant the determination.
(4)  If a matter was:
(a)  disclosed in an application for admission to the legal profession in this or another jurisdiction, and
(b)  determined by a Supreme Court or by the Admission Board or a corresponding authority not to be sufficient for refusing admission,
the matter cannot be taken into account as a ground for refusing to grant or renew or for suspending or cancelling a local practising certificate unless the matter was a pre-admission event (whether it happened before or after the commencement of this section), but the matter may be taken into account when considering other matters in relation to the person concerned.
(5)  A Council may decide to take no action or no further action in connection with a pre-admission event, if satisfied that it is appropriate to do so given the passage of time and other circumstances the Council considers relevant.

43   Duration of local practising certificate

(1)  A local practising certificate granted under this Act is in force from the date specified in it until the end of the financial year in which it is granted, unless the certificate is sooner suspended or cancelled.
(2)  A local practising certificate renewed under this Act is in force until the end of the financial year following its previous period of currency, unless the certificate is sooner suspended or cancelled.
(3)  If an application for the renewal of a local practising certificate as a solicitor has been properly made as required by this Act but has not been determined by the Law Society Council by the following 1 July, the certificate:
(a)  continues in force on and from that 1 July until the Law Society Council renews or refuses to renew the certificate or the holder withdraws the application for renewal, unless the certificate is sooner cancelled or suspended, and
(b)  if renewed, is taken to have been renewed on and from that 1 July.

44   Local legal practitioner is officer of Supreme Court

A person who is not already an officer of the Supreme Court becomes an officer of the Supreme Court on being granted a local practising certificate.

Division 4 Grant or renewal of local practising certificates

45   Application for grant of local practising certificate

(1) Applications generally
An Australian lawyer may apply to the appropriate Council for the grant or renewal of a local practising certificate if eligible to do so under this section.
(2) General eligibility to make application
An Australian lawyer is eligible to apply for the grant or renewal of a local practising certificate if the lawyer complies with any regulations and legal profession rules relating to eligibility for the practising certificate and if:
(a)  in the case of a lawyer who is not an Australian legal practitioner at the time of making the application:
(i)  the lawyer reasonably expects to be engaged in legal practice solely or principally in this jurisdiction during the currency of the certificate or renewal applied for, or
(ii)  if subparagraph (i) does not apply to the lawyer or it is not reasonably practicable to determine whether it applies to the lawyer—the lawyer’s place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia, or
(b)  in the case of a lawyer who is an Australian legal practitioner at the time of making the application:
(i)  the jurisdiction in which the lawyer engages in legal practice solely or principally is this jurisdiction, or
(ii)  the lawyer holds a current local practising certificate and engages in legal practice in another jurisdiction under an arrangement that is of a temporary nature, or
(iii)  the lawyer reasonably expects to be engaged in legal practice solely or principally in this jurisdiction during the currency of the certificate or renewal applied for, or
(iv)  if subparagraphs (i), (ii) and (iii) do not apply to the lawyer or it is not reasonably practicable to determine whether subparagraph (i), (ii) or (iii) applies to the lawyer—the lawyer’s place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia.
(3) Determination of place of legal practice in Australia
For the purposes of subsection (2) (b), the jurisdiction in which an Australian lawyer engages in legal practice solely or principally is to be decided by reference to the lawyer’s legal practice during the certificate period current at the time:
(a)  the application is made, or
(b)  in the case of a late application—the application should have been made.
(4) Circumstances in which application cannot be made (more than one Australian practising certificate)
An Australian lawyer is not eligible to apply for the grant or renewal of a local practising certificate in respect of a financial year if the lawyer would also be the holder of another Australian practising certificate for that year, but this subsection does not limit the factors determining ineligibility to apply for the grant or renewal of a local practising certificate.
(5) Application must not be made by ineligible lawyer
An Australian lawyer must not apply for the grant or renewal of a local practising certificate if the lawyer is not eligible to make the application.
(6) Circumstances in which application must be made
An Australian legal practitioner who:
(a)  engages in legal practice solely or principally in this jurisdiction during a financial year, and
(b)  reasonably expects to engage in legal practice solely or principally in this jurisdiction in the following financial year,
must apply for the grant or renewal of a local practising certificate in respect of the following financial year.
(7)  Subsection (6) does not apply to an interstate legal practitioner who applied for the grant or renewal of an interstate practising certificate on the basis that the practitioner reasonably expected to engage in legal practice solely or principally in this jurisdiction under an arrangement that is of a temporary nature.
(8)  The exemption provided by subsection (7) ceases to operate at the end of the period prescribed by the regulations for the purposes of this subsection.
(9) Application for local practising certificate by lawyer who practises in Australia and overseas
A reference in this section to engaging in legal practice principally in this or any other jurisdiction applies only to legal practice in Australia. Accordingly, an Australian lawyer who is engaged or expects to be engaged in legal practice principally in a foreign country is nevertheless eligible to apply for the grant or renewal of a local practising certificate if the lawyer otherwise meets the requirements of this section.
Note. The purpose of this subsection is to deal with a case where a person practises both in Australia and overseas. In that case, overseas practice is to be disregarded (even if it forms the principal portion of the person’s overall practice), so that eligibility is determined by reference to the person’s practice in Australia.
(10) Application for local practising certificate by lawyer of prescribed class
An Australian lawyer is also eligible to apply for the grant or renewal of a local practising certificate if the lawyer is of a class or description prescribed by the regulations. The regulations may provide that a Council has a discretion as to whether or not to grant or renew a local practising certificate to a person in his or her capacity as an Australian lawyer of that class or description.
Note. The purpose of this subsection is to enable regulations to be made conferring eligibility on an Australian lawyer who is not otherwise eligible to apply for a local practising certificate. Regulations could be made conferring eligibility, for example, on an Australian lawyer who practises exclusively overseas, or an Australian lawyer who holds a public office of a specified kind.

46   Manner of application

(1)  An application for the grant or renewal of a local practising certificate must be:
(a)  made in accordance with the regulations and must provide or be accompanied by such information as may be required by the regulations, and
(b)  accompanied by the appropriate fees.
(2)  The regulations may require the applicant to disclose matters that may affect the applicant’s eligibility for the grant or renewal of a local practising certificate or the question whether the applicant is a fit and proper person to hold a local practising certificate.
(3)  The regulations may indicate that particular kinds of matters previously disclosed in a particular manner need not be disclosed for the purposes of the current application.
(4)  Without limiting subsection (2), the regulations may require the applicant to disclose details of, or details of the nature of, pre-admission events.
(5)  The appropriate Council may require an applicant to provide such further information as it considers relevant to its determination of the application within such time as it specifies.

47   Timing of application for renewal of local practising certificate

(1)  An application for the renewal of a local practising certificate must be made within:
(a)  the period prescribed by the regulations as the standard renewal period, or
(b)  a later period prescribed by the regulations as the late fee period.
(2)  Those periods must be within the currency of the local practising certificate being renewed.
(3)  The appropriate Council may reject an application for renewal made during the late fee period, and must reject an application for renewal made outside those periods.
Note. Section 92 authorises the charging of a late fee for applications received during the late fee period. If an application is rejected under subsection (3), the applicant will have to apply for the grant of a new practising certificate.

48   Grant or renewal of local practising certificate

(1)  The appropriate Council must consider an application that has been made for the grant or renewal of a local practising certificate and may:
(a)  grant or refuse to grant the certificate, or
(b)  renew or refuse to renew the certificate.
(1A)  The appropriate Council may, when granting or renewing a certificate, impose conditions as referred to in section 50 (Conditions imposed by Council).
(2)  The Council may refuse:
(a)  to consider an application if:
(i)  it is not made in accordance with this Act, the regulations or the legal profession rules, or
(ii)  the required fees and costs have not been paid, or
(iii)  further information has not been provided as required under section 46 (5), or
(b)  to grant or renew a local practising certificate if the applicant has not complied with the regulations or the legal profession rules in relation to the application.
(3)  The Council must not grant a local practising certificate unless it is satisfied that the applicant:
(a)  was eligible to apply for the grant when the application was made, and
(b)  is a fit and proper person to hold the certificate.
Note. Section 42 (Suitability to hold local practising certificate) deals with the question of whether or not a person is a fit and proper person to hold a practising certificate.
(4)  The Council must not renew a local practising certificate if it is satisfied that the applicant:
(a)  was not eligible to apply for the renewal when the application was made, or
(b)  is not a fit and proper person to continue to hold the certificate.
(5)  The Council must not grant or renew a local practising certificate if the Council considers the applicant’s circumstances have changed since the application was made and the applicant would (having regard to information that has come to the Council’s attention) not have been eligible to make the application when the application is being considered.
(6)  Without limiting any other provision of this section, the Council may refuse to grant or renew a local practising certificate if a finding of unsatisfactory professional conduct or professional misconduct has been made in respect of the applicant and:
(a)  a fine imposed because of the finding has not been paid, or
(b)  costs awarded against the applicant because of the finding have been assessed but have not been paid or, if an arrangement for their payment has been made, the applicant is in default under the arrangement.
(7)  Without limiting any other provision of this section, the Council may refuse to grant or renew a local practising certificate if:
(a)  any costs of an investigation or examination payable under Part 3.1 by or in respect of the applicant have not been paid, or
(b)  any fees, costs or expenses of external intervention payable under Chapter 5 by or in respect of the applicant have not been paid, or
(c)  the applicant is required by this Act to contribute to the Indemnity Fund and the application is not accompanied by the contribution payable under that section, or
(d)  the applicant is required by this Act to contribute to the Fidelity Fund and the application is not accompanied by the contribution payable under that section, or
(e)  any levy payable by the applicant under Part 3.3 or 3.4 or Schedule 7 is unpaid, or
(f)  the required application fees and costs have not been paid.
(8)  Without limiting any other provision of this section, the Council may refuse to grant or renew a local practising certificate on any ground on which the local practising certificate could be suspended or cancelled.
(9)  Without limiting any other provision of this section, the Bar Council may refuse to grant a local practising certificate for a barrister if the applicant has not successfully completed any examination required by the Bar Council to be passed as a prerequisite to undertaking a reading program.
(10)  This section does not affect any other provision of this Act that provides for the refusal to grant a local practising certificate.
Note. Sections 403 and 406 provide for the refusal to grant a local practising certificate if any required professional indemnity insurance has not been obtained. Section 485 provides for the refusal to grant a local practising certificate if any required fidelity cover in respect of regulated mortgages has not been obtained.
(11)  If the Council grants or renews a local practising certificate, the Council must, as soon as practicable, give the applicant:
(a)  for the grant of a certificate—a local practising certificate, or
(b)  for the renewal of a certificate—a new local practising certificate.
(12)  If the Council refuses to grant or renew a local practising certificate, the Council must, as soon as practicable, give the applicant an information notice.
(13)  If an application made for the grant of a local practising certificate is not determined within:
(a)  3 months after the application is made, unless paragraph (b) applies, or
(b)  the required period referred to in section 68 (Investigation and consideration of show cause event), if that section applies in relation to the applicant,
the application is deemed to have been refused.

Division 5 Conditions on local practising certificates

49   Conditions generally

(1)  A local practising certificate is subject to:
(a)  any conditions imposed by the appropriate Council, and
(b)  any statutory conditions imposed by this or any other Act, and
(c)  any conditions imposed by or under the legal profession rules or the regulations, and
(d)  any conditions imposed or varied by the Tribunal under section 51 (Imposition or variation of conditions pending criminal proceedings), and
(e)  any conditions imposed under Chapter 4 (Complaints and discipline) or under provisions of a corresponding law that correspond to Chapter 4.
(2)  If a condition is imposed, varied or revoked under this Act (other than a statutory condition) during the currency of the local practising certificate concerned, the certificate is to be amended by the appropriate Council, or a new certificate is to be issued by the Council, to reflect on its face the imposition, variation or revocation.

50   Conditions imposed by Council

(1)  The appropriate Council may impose conditions on a local practising certificate:
(a)  when it is granted or renewed, or
(b)  during its currency (in accordance with section 61 (Amending, suspending or cancelling local practising certificate)).
(2)  A condition imposed under this section must be reasonable and relevant.
(3)  A condition imposed under this section may be about any of the following:
(a)  requiring the holder of the practising certificate to undertake and complete:
(i)  continuing legal education, or
(ii)  specific legal education or training, or
(iii)  a period of supervised legal practice,
(b)  restricting the areas of law practised,
(c)  controlling, restricting or prohibiting the operation of a trust account,
(d)  restricting the holder to particular conditions concerning employment or supervision,
(e)  requiring the holder of the practising certificate to undergo counselling or medical treatment or to act in accordance with medical advice given to the holder,
(f)  requiring the holder of the practising certificate to use the services of an accountant or other financial specialist in connection with his or her practice,
(g)  requiring the holder of the practising certificate to provide the appropriate Council with evidence as to any outstanding tax obligations of the holder and as to provision made by the holder to satisfy any such outstanding obligations,
(h)  a matter agreed to by the holder.
(4)  Subsection (3) does not limit the matters about which a condition may be imposed under this section.
(5)  The appropriate Council must not impose a condition requiring the holder to undertake and complete specific legal education or training unless:
(a)  the Council is satisfied, having regard to:
(i)  the nature or currency of the holder’s academic studies, legal training or legal experience, or
(ii)  the holder’s conduct,
that it is reasonable to require the specific legal education or training to be undertaken, or
(b)  the condition is one that is imposed generally on holders of local practising certificates or any class of holders of local practising certificates.
Note. A class of holders might comprise newly qualified lawyers, or lawyers returning to legal practice after suspension or an extended break.
(6)  The appropriate Council may vary or revoke conditions imposed under this section.
(7)  If the appropriate Council imposes, varies or revokes a condition during the currency of the local practising certificate concerned, the imposition, variation or revocation takes effect when the holder has been notified of it or a later time specified by the Council.
(8)  If the appropriate Council imposes a condition on the certificate when it is granted or renewed and the holder of the certificate within one month after the grant or renewal notifies the Council in writing that he or she does not agree to the condition, the Council must, as soon as practicable, give the holder an information notice.
(9)  This section has effect subject to section 61 (Amending, suspending or cancelling local practising certificate) in relation to the imposition of a condition on a local practising certificate during its currency.

51   Imposition or variation of conditions pending criminal proceedings

(1)  If a local legal practitioner has been charged with a relevant offence but the charge has not been determined, the appropriate Council may apply to the Tribunal for an order under this section.
(2)  On an application under subsection (1), the Tribunal, if it considers it appropriate to do so having regard to the seriousness of the offence and to the public interest, may make either or both of the following orders:
(a)  an order varying the conditions on the practitioner’s local practising certificate, or
(b)  an order imposing further conditions on the practitioner’s local practising certificate.
(3)  An order under this section has effect until the sooner of:
(a)  the end of the period specified by the Tribunal, or
(b)  if the practitioner is convicted of the offence—28 days after the day of the conviction, or
(c)  if the charge is dismissed—the day of the dismissal.
(4)  The Tribunal, on application by any party, may vary or revoke an order under this section at any time.
(5)  In this section:

relevant offence means a serious offence or an offence that would have to be disclosed under the admission rules in relation to an application for admission to the legal profession under this Act.

52   Statutory condition regarding conditions imposed on interstate admission

It is a statutory condition of a local practising certificate that the holder must not contravene a condition that was imposed on the admission of the person to the legal profession under a corresponding law (with any variations of the condition made from time to time) and that is still in force.
Note. Contravention of a condition imposed on admission locally is dealt with in section 58 (Compliance with conditions).

53   Statutory condition regarding practice as solicitor

(1)  It is a statutory condition of a local practising certificate for a solicitor that the holder must 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 legal practitioner, whether involving articles of clerkship or otherwise, to qualify for admission to the legal profession in this or another jurisdiction—a period or periods equivalent to 18 months’ supervised legal practice, worked out under relevant regulations, after the day the holder’s first practising certificate was granted, or
(b)  if the holder completed other practical legal training to qualify for admission to the legal profession in this or another jurisdiction—a period or periods equivalent to 2 years’ supervised legal practice, worked out under relevant regulations, after the day the holder’s first practising certificate was granted.
(2)  Subsection (1) has effect subject to any other conditions that relate to engaging in supervised legal practice as a solicitor after a period or periods referred to in that subsection.
(3)  A Council may exempt a person or class of persons from the requirement for supervised legal practice under subsection (1) or may reduce a period referred to in that subsection 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:
(a)  the length and nature of any legal practice previously engaged in by the person or persons, and
(b)  the length and nature of any legal practice engaged in by the supervisors (if any) who previously supervised the legal practice engaged in by the person or persons.
(4)  An exemption under subsection (3) may be given unconditionally or subject to such conditions as the Council thinks appropriate.

54   Statutory condition regarding practice as a barrister

(1)  It is a statutory condition of a local practising certificate for a barrister (but not a solicitor and barrister) that the barrister must not:
(a)  engage in legal practice otherwise than as a sole practitioner, or
(b)  engage in legal practice in partnership with any person, or
(c)  engage in legal practice as the employee of any person, or
(d)  hold office as a legal practitioner director of an incorporated legal practice.
(2)  Subsection (1) does not apply to:
(a)  a barrister who is, or who is of a class or description of barristers, specified by the Bar Council for the purposes of this section, or
(b)  a barrister who is of a class or description of barristers prescribed by the regulations for the purposes of this section,
to the extent respectively specified by the Bar Council or prescribed by the regulations.

55   Statutory condition regarding notification of offence

(1)  It is a statutory condition of a local practising certificate that the holder of the certificate:
(a)  must notify the appropriate Council that the holder has been:
(i)  convicted of an offence that would have to be disclosed under the admission rules in relation to an application for admission to the legal profession under this Act, or
(ii)  charged with a serious offence, and
(b)  must do so within 7 days of the event and by a written notice.
(2)  The regulations, or the legal profession rules if the regulations do not do so, may specify the form of the notice to be used and the person to whom or the address to which it is to be sent or delivered.
(3)  The giving of notice in accordance with Division 7 (Special powers in relation to local practising certificates—show cause events) of a conviction for a serious offence satisfies the requirements of subsection (1) (a) (i) in relation to the conviction.

56   Additional conditions on practising certificates of barristers

(1)  Without limiting section 50 (Conditions imposed by Council), the Bar Council may under that section impose conditions of the following kinds on the practising certificate of a barrister:
(a)  a condition requiring the holder to undertake and complete to the satisfaction of the Bar Council a full-time component or other component of a reading program applicable to the holder and determined or approved by the Bar Council,
(b)  a condition requiring the holder to read with a barrister of a specified class or description chosen by the holder (including a barrister chosen from a list of at least 10 barristers kept by the Bar Council for the purpose) for a specified period and to comply with such requirements as will enable the barrister, at the end of the specified period, to certify to the Bar Council that the holder is fit to practise as a barrister without restriction.
(2)  A condition of a kind referred to in subsection (1) that is imposed on the practising certificate of a barrister may limit the practising rights of the barrister until the condition is complied with.
(3)  The Bar Council may cancel or suspend a local practising certificate if the holder fails to comply with a condition of the kind referred to in subsection (1).

57   Conditions imposed by legal profession rules

The legal profession rules may:
(a)  impose conditions on local practising certificates or any class of local practising certificates, or
(b)  authorise conditions to be imposed on local practising certificates or any class of local practising certificates.

58   Compliance with conditions

(1)  The holder of a current local practising certificate must not contravene (in this jurisdiction or elsewhere) a condition to which the certificate is subject.

Maximum penalty: 100 penalty units.

(2)  (Repealed)

Division 6 Amendment, suspension or cancellation of local practising certificates

59   Application of this Division

This Division does not apply in relation to matters referred to in Division 7 (Special powers in relation to local practising certificates—show cause events).

60   Grounds for suspending or cancelling local practising certificate

(1)  Each of the following is a ground for suspending or cancelling a local practising certificate:
(a)  the holder is no longer a fit and proper person to hold the certificate,
Note. Section 42 (Suitability to hold local practising certificate) deals with the question of whether or not a person is a fit and proper person to hold a practising certificate.
(b)  if the holder is an insurable barrister or insurable solicitor within the meaning of Part 3.3 (Professional indemnity insurance)—the holder does not have, or no longer has, professional indemnity insurance that complies with this Act in relation to the certificate,
(c)  if the holder is an insurable solicitor within the meaning of Part 3.3 (Professional indemnity insurance)—the holder fails to pay a contribution, instalment of a contribution, or levy in accordance with section 411 (Contributions) or 412 (Levies) or Schedule 7 (Professional indemnity insurance—provisions relating to HIH insurance),
(d)  if a condition of the certificate is that the holder is limited to legal practice specified in the certificate—the holder is engaging in legal practice that the holder is not entitled to engage in under this Act.
(2)  Subsection (1) does not limit the grounds on which conditions may be imposed on a local practising certificate under section 50.

61   Amending, suspending or cancelling local practising certificates

(1)  If the appropriate Council believes a ground exists to amend, suspend or cancel a local practising certificate (the proposed action), the Council must give the holder a notice that:
(a)  states the proposed action and:
(i)  if the proposed action is to amend the certificate—states the proposed amendment, and
(ii)  if the proposed action is to suspend the certificate—states the proposed suspension period, and
(b)  states the grounds for proposing to take the proposed action, and
(c)  outlines the facts and circumstances that form the basis for the Council’s belief, and
(d)  invites the holder to make written representations to the Council within a specified time of not less than 7 days and not more than 28 days, as to why the proposed action should not be taken.
(2)  If, after considering all written representations made within the specified time and, in its discretion, written representations made after the specified time, the Council still believes a ground exists to take the proposed action, the Council may:
(a)  if the notice under subsection (1) stated the proposed action was to amend the practising certificate—amend the certificate in the way stated or in a less onerous way the Council considers appropriate because of the representations, or
(b)  if the notice stated the proposed action was to suspend the practising certificate for a specified period:
(i)  suspend the certificate for a period no longer than the specified period, or
(ii)  amend the certificate in a less onerous way the Council considers appropriate because of the representations, or
(c)  if the notice stated the proposed action was to cancel the practising certificate:
(i)  cancel the certificate, or
(ii)  suspend the certificate for a period, or
(iii)  amend the certificate in a less onerous way the Council considers appropriate because of the representations.
(3)  The Council may, at its discretion, consider representations made after the specified time.
(4)  The Council must give the person notice of its decision.
(5)  If the Council decides to amend, suspend or cancel the practising certificate, the Council must give the holder an information notice about the decision.
(6)  In this section, amend a certificate means amend the certificate under section 50 during its currency, other than at the request of the holder of the certificate.

62   Operation of amendment, suspension or cancellation of local practising certificate

(1) Application of section
This section applies if a decision is made to amend, suspend or cancel a local practising certificate under section 61 (Amending, suspending or cancelling local practising certificate).
(2) Action to take effect on giving of notice or specified date
Subject to subsections (3) and (4), the amendment, suspension or cancellation of the practising certificate takes effect on the later of the following:
(a)  the day notice of the decision is given to the holder,
(b)  the day specified in the notice.
(3) Grant of stay
If the practising certificate is amended, suspended or cancelled because the holder has been convicted of an offence:
(a)  the Supreme Court may, on the application of the holder, order that the operation of the amendment, suspension or cancellation of the practising certificate be stayed until:
(i)  the end of the time to appeal against the conviction, and
(ii)  if an appeal is made against the conviction—the appeal is finally decided, lapses or otherwise ends, and
(b)  the amendment, suspension or cancellation does not have effect during any period in respect of which the stay is in force.
(4) Quashing of conviction
If the practising certificate is amended, suspended or cancelled because the holder has been convicted of an offence and the conviction is quashed:
(a)  the amendment or suspension ceases to have effect when the conviction is quashed, or
(b)  the cancellation ceases to have effect when the conviction is quashed and the certificate is restored as if it had merely been suspended.

63   Other ways of amending or cancelling local practising certificate

(1)  The appropriate Council may amend or cancel a local practising certificate if the holder requests the appropriate Council to do so.
(2)  The appropriate Council may amend a local practising certificate:
(a)  for a formal or clerical reason, or
(b)  in another way that does not adversely affect the holder’s interests.
(3)  The appropriate Council must cancel a local practising certificate if the holder’s name has been removed from the local roll or the holder ceases to be an Australian lawyer.
(4)  The amendment or cancellation of a local practising certificate under this section is effected by written notice given to the holder.
(5)  Section 61 (Amending, suspending or cancelling local practising certificate) does not apply in a case to which this section applies.

64   Relationship of this Division with Chapter 4

Nothing in this Division prevents a complaint from being made under Chapter 4 (Complaints and discipline) about a matter to which this Division relates.

Division 7 Special powers in relation to local practising certificates—show cause events

65   (Repealed)

66   Applicant for local practising certificate—show cause event

(1)  This section applies if:
(a)  a person (referred to in this Division as the applicant) is applying for the grant of a local practising certificate, and
(b)  a show cause event in relation to the person happened, whether before or after the commencement of this section and whether before or after the person was first admitted to the legal profession in this or another jurisdiction.
(2)  As part of the application, the applicant must provide to the appropriate Council a written 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 local practising certificate.
(3)  A contravention of subsection (2) is professional misconduct.
(4)  However, the applicant need not provide a statement under subsection (2) if the applicant (as a previous applicant for a local practising certificate or as the holder of a local practising certificate previously in force) has previously provided to the appropriate Council:
(a)  a statement under this section, or
(b)  a notice and statement under section 67,
explaining why, despite the show cause event, the applicant considers himself or herself to be a fit and proper person to hold a local practising certificate.
(5)  If the show cause event is a pre-admission event, the appropriate Council may decide to take no action under this Division in connection with the event, if satisfied that it is appropriate to do so given the passage of time and other circumstances the Council considers relevant (in which case the Council is not required to investigate and determine the matter under section 68).
(6)  A Council must, within 7 days after receiving a written statement from the applicant under this section about a show cause event, provide a copy of the statement to the Commissioner.
(7)  A Council may refuse to grant a local practising certificate if the applicant:
(a)  is required by this section to provide a written statement about a show cause event and has failed to provide the statement in accordance with this section, or
(b)  has provided a written statement in accordance with this section but, in the opinion of the Council, the applicant has failed to show in the statement that the applicant is a fit and proper person to hold a practising certificate, or
(c)  has failed without reasonable excuse to comply with a requirement under Chapter 6 (Provisions relating to investigations) 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.
(8)  If a Council refuses to grant a local practising certificate under subsection (7) to an applicant, the Council is not required to exercise its functions under section 68 in relation to the application.

67   Holder of local practising certificate—show cause event

(1)  This section applies to a show cause event that happens in relation to a person (referred to in this Division as the holder) who is the holder of a local practising certificate.
(2)  The holder must provide to the appropriate Council both of the following:
(a)  within 7 days after the happening of the event—written notice that the event happened,
(b)  within 28 days after the happening of the event—a written statement explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to hold a local practising certificate.
(3)  A contravention of subsection (2) is professional misconduct.
(4)  If a written statement is provided after the 28 days mentioned in subsection (2) (b), the appropriate Council may accept the statement and take it into consideration.
(5)  A Council must, within 7 days after receiving a notice or statement from a local practitioner under this section, provide a copy of the notice or statement to the Commissioner.
(6)  A Council may cancel or suspend a local practising certificate if the holder:
(a)  is required by this section to provide notice or a written statement about a show cause event and has failed to provide the notice or statement in accordance with this section, or
(b)  has provided a written statement in accordance with this section but, in the opinion of the Council, the holder has failed to show in the statement that the holder is a fit and proper person to hold a practising certificate, or
(c)  has failed without reasonable excuse to comply with a requirement under Chapter 6 (Provisions relating to investigations) 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.
(7)  If a Council cancels or suspends a local practising certificate under subsection (6), the Council is not required to exercise its functions under section 68 in relation to the matter.

68   Investigation and consideration of show cause event

(1)  On becoming aware of the happening of a show cause event in relation to an applicant or holder, the appropriate Council must investigate and determine within the required period whether the applicant or holder is a fit and proper person to hold a local practising certificate.
(2)  The appropriate Council must within 28 days of becoming aware of the happening of the show cause event give notice in writing to the applicant or holder:
(a)  if the Council has not received a statement under section 66 or 67 in relation to the show cause event, requiring the applicant or holder to provide the required statement, and
(b)  informing the applicant or holder that a determination in relation to the matter is required to be made under this Division, and
(c)  informing the applicant or holder of the required period under this section in relation to the determination of the matter and that the applicant or holder will be notified of any extension of that period, and
(d)  informing the applicant or holder of the effect of the automatic suspension provisions in section 70 in the event of the matter not being determined by the Council or the Commissioner within the required period.
(3)  The appropriate Council must determine the matter by:
(a)  deciding that the applicant or holder is a fit and proper person to hold a local practising certificate, or
(b)  deciding that the applicant or holder is not a fit and proper person to hold a local practising certificate, or
(c)  deciding that the applicant or holder is a fit and proper person to hold a local practising certificate but that it is appropriate to impose conditions on the applicant’s or holder’s local practising certificate for a specified period.
(4)  In investigating and determining a matter under this section the appropriate Council:
(a)  is not limited to investigating and making its determination on the basis of just the show cause event concerned, and
(b)  must have regard to the facts and circumstances that surround, arise in connection with, relate to or give rise to the show cause event concerned.
(5)  For the purposes of this section, the required period within which the matter must be determined is the period of 3 months (or 4 months if the Commissioner decides in a particular case to extend the period) commencing on:
(a)  the date on which the appropriate Council receives a written statement under section 66 or 67 in relation to the show cause event, or
(b)  if the appropriate Council has not received a written statement as referred to in paragraph (a) when it gives a notice under subsection (2) to the applicant or holder, the date specified in the notice as the date of issue of the notice.
(6)  If the Commissioner extends a period under subsection (5), the Commissioner must give notice in writing to the applicant or holder concerned of the extension of the period.
(7)  The appropriate Council is not required to deal with a matter under this section if the matter has previously been the subject of investigation and determination under this section.
(8)  The appropriate Council must give the applicant or holder an information notice about a decision under subsection (3) (b) or (c). The Commissioner must give that notice if the Commissioner makes the decision in the exercise of the functions of the Council under section 71 (Commissioner taking over determination of matter).

69   Power to renew practising certificate or defer action in special circumstances

(1)  Despite any other provision of this Division, a Council may renew a holder’s local practising certificate if the end of the financial year for which the holder’s current practising certificate is in force is imminent and the Council has not made a determination under section 68 in relation to the holder.
(2)  The renewal of a practising certificate in the circumstances referred to in subsection (1) does not prevent a determination from subsequently being made and action taken under this Division to cancel or suspend the holder’s local practising certificate.
(3)  Despite any other provision of this Act, a Council required to determine a matter under section 68 in relation to a holder may, for the purpose of enabling the proper arrangement of the affairs of the holder:
(a)  renew the holder’s local practising certificate for such period, specified in the local practising certificate, as the Council considers necessary to achieve that purpose, or
(b)  defer cancelling or suspending the holder’s local practising certificate for such period as the Council considers necessary to achieve that purpose.

70   No decision in required period—suspension of practising certificate and referral to Commissioner

(1)  If the appropriate Council has not determined a matter under section 68 (Investigation and consideration of show cause event) within the required period under that section:
(a)  the Commissioner must take over the determination of the matter under that section from the Council, and
(b)  if the matter concerns the holder of a local practising certificate, the local practising certificate of the holder concerned is suspended.
Note. Subsection (1) extends to an applicant for a local practising certificate but the rest of this section applies only to the holder of a local practising certificate that is suspended under subsection (1).
(2)  A suspension imposed by this section remains in force (unless the Tribunal orders its removal sooner) until:
(a)  the Commissioner decides that the holder is a fit and proper person to hold a local practising certificate, or
(b)  the appropriate Council has given effect to any other decision of the Commissioner as required by section 72 (Council to implement decisions under this Division).
(3)  The holder whose local practising certificate is suspended by this section may make an application to the Tribunal to remove the suspension.
(4)  When dealing with such an application, the Tribunal may make any one or more of the following orders:
(a)  an order removing the suspension on the grounds that the holder is a fit and proper person to hold a local practising certificate,
(b)  an order continuing the suspension for a specified period,
(c)  an order that specified conditions be imposed on the holder’s local practising certificate for a specified period,
(d)  an order that the appropriate Council cancel the holder’s local practising certificate on the ground that the holder is not a fit and proper person to hold a local practising certificate,
(e)  an order that the Commissioner suspend any investigation or determination of the matter pending the Tribunal’s decision on the application.
(5)  The Commissioner may investigate and determine a matter under this Division and exercise powers under this Division in relation to the matter despite a suspension under this section of the local practising certificate concerned unless the Tribunal otherwise orders under this section.
(6)  The Commissioner and a Council are to give effect to any order of the Tribunal under this section.

71   Commissioner taking over determination of matter

When the Commissioner takes over the determination of a matter under section 68 (Investigation and consideration of show cause event) from a Council:
(a)  the Council is not required to determine the matter and is to cease to deal with the matter, and
(b)  the Commissioner has and may exercise the functions of the Council to investigate and determine the matter under section 68 (Investigation and consideration of show cause event), and
(c)  the Council is to provide any assistance required by the Commissioner to investigate the matter (including copies of or access to all documents held by the Council that relate to the matter or are required for the purpose of investigating the matter).

72   Council to implement decisions under this Division

(1)  If the appropriate Council or the Commissioner decides under this Division that the applicant or holder is not a fit and proper person to hold a local practising certificate:
(a)  the Council must give effect to that decision by refusing the grant of a local practising certificate to the applicant or by immediately cancelling or suspending the holder’s local practising certificate, and
(b)  the Council may make a complaint in relation to the matter under Part 4.2, or institute proceedings in relation to the matter in the Tribunal under Part 4.8 (as if the matter had been the subject of complaint and investigation under Chapter 4).
(2)  If a Council institutes proceedings in the Tribunal as referred to in subsection (1) (b), the Council must notify the Commissioner that those proceedings have been instituted.
(3)  If the appropriate Council decides under this Division that it is appropriate to impose conditions on an applicant’s or holder’s local practising certificate, the Council must give effect to that decision by imposing those conditions.
(4)  If the Commissioner decides under this Division that it is appropriate to impose conditions on an applicant’s or holder’s local practising certificate, the Council must give effect to that decision by imposing such of those conditions as it considers to be appropriate after consultation with the Commissioner.
(5)  If the appropriate Council or the Commissioner decides under this Division that the applicant or holder is a fit and proper person to hold a local practising certificate, the Council must, subject to this Act, grant a local practising certificate to the applicant or lift any suspension of the holder’s local practising certificate.
(6)  Conditions imposed as referred to in this section must continue to be imposed for such period as the appropriate Council has decided is the period for which they should be imposed or (in the case of conditions that the Commissioner has decided it is appropriate to impose) for such period as the appropriate Council has decided is the period for which they should be imposed after consultation with the Commissioner.
(7)  The appropriate Council must not grant a local practising certificate to an applicant during any period that the Commissioner has directed under this Division that the person is not to be granted a local practising certificate.
(8)  A cancellation or suspension of or imposition of conditions on a local practising certificate takes effect when the appropriate Council gives notice in writing of it to the holder.
(9)  Despite section 60 of the Administrative Decisions Review Act 1997, an application to the Tribunal for an administrative review of a decision referred to in this section does not affect the operation of the decision under review or prevent the taking of action under this section to implement that decision.

73   Failure to comply with conditions imposed under this Division

(1)  If the holder of a local practising certificate contravenes without reasonable excuse a condition of the practising certificate imposed under this Division:
(a)  the contravention is professional misconduct, and
(b)  the appropriate Council may, by written notice given to the holder, cancel or suspend the local practising certificate.
(2)  The notice under this section must:
(a)  include an information notice about the cancellation or suspension, and
(b)  state that the holder may apply for a review of the decision of the Council under section 75.
(3)  The Council may revoke a suspension under this section at any time.

74   Restriction on making further applications

(1)  If the appropriate Council refuses to grant a local practising certificate to an applicant or cancels a holder’s local practising certificate under this Division, the Council may also decide that the applicant or holder is not entitled to apply for the grant of a local practising certificate for a specified period not exceeding 5 years.
(2)  The Commissioner may, in making a decision that an applicant or holder is not a fit and proper person to hold a local practising certificate, also decide that the applicant or holder is not entitled to apply for the grant of a local practising certificate for a specified period not exceeding 5 years.
(3)  If the Council or Commissioner makes such a decision, the decision must be included in the information notice required under section 68 (8).
(4)  A person in respect of whom a decision has been made under this section, or under a provision of a corresponding law, is not entitled to apply for the grant of a local practising certificate during the period specified in the decision.

75   Administrative review of decisions by Tribunal

(1)  An applicant or holder who is dissatisfied with a decision of a Council or the Commissioner under this Division with respect to the applicant or holder may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997.
(2)  A Council must notify the Commissioner of the lodging of any application for an administrative review of a decision of the Council. The Commissioner must notify the appropriate Council of the lodging of any application for an administrative review of a decision of the Commissioner.
(3)  In proceedings on an administrative review by the Tribunal of a decision under this Division in which the question of whether a person is a fit and proper person to hold a local practising certificate is at issue:
(a)  the onus of establishing that a person is a fit and proper person to hold a local 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 a Council or Commissioner for the decision concerned is a correct statement of the facts in the matter, and
(c)  a certificate of conviction of an offence (being a certificate referred to in section 178 (Convictions, acquittals and other judicial proceedings) of the Evidence Act 1995) is admissible in the proceedings and is evidence of the commission of the offence by the person to whom it relates, and
(d)  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 1966 of the Commonwealth is admissible in the proceedings and is evidence of the matters stated in the document.
(4)  Without limiting Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997, the Tribunal may make any order it considers appropriate in proceedings on an application under this section, including any of the following orders:
(a)  an order directing the appropriate Council to grant, or to refuse to grant, an application for a local practising certificate,
(b)  an order directing the appropriate Council to cancel or suspend for a specified period a local practising certificate, or to reinstate a local practising certificate that has been cancelled or suspended,
(c)  an order that an applicant or holder is not entitled to apply for the grant of a local practising certificate for a specified period not exceeding 5 years,
(d)  an order directing the appropriate Council to impose conditions on a local practising certificate for a specified period, or to vary or revoke conditions imposed by the appropriate Council or to vary the period for which they are required to be imposed.
(5)  The Tribunal may not order the imposition of conditions on a local practising certificate without first taking submissions from the appropriate Council as to the appropriateness of the proposed conditions.
(6)  The appropriate Council is to give effect to any order of the Tribunal under this section.

76   (Repealed)

77   Relationship of this Division with Chapters 4 and 6

(1)  The provisions of Part 4.4 (Investigation of complaints), and the provisions of Chapter 6 (Provisions relating to investigations) that are relevant to Part 4.4, apply, with any necessary adaptations, in relation to a matter under this Division, as if the matter were the subject of a complaint under Chapter 4.
(2)  Nothing in this Division prevents a complaint from being made under Chapter 4 about a matter to which this Division relates.

Division 8 Further provisions relating to local practising certificates

78   Immediate suspension of local practising certificate

(1)  This section applies, despite Divisions 6 and 7, if the appropriate Council considers it necessary in the public interest to immediately suspend a local practising certificate on:
(a)  any of the grounds on which the certificate could be suspended or cancelled under Division 6, or
(b)  the ground of the happening of a show cause event in relation to the holder, or
(c)  any other ground that the Council considers warrants suspension of the local practising certificate in the public interest,
whether or not any action has been taken or commenced under Division 6 or 7 in relation to the holder.
(2)  The Council may, by written notice given to the holder, immediately suspend the practising certificate until the earlier of the following:
(a)  the time at which the Council informs the holder of the Council’s decision by notice under section 61 (4) (Amending, suspending or cancelling local practising certificate),
(b)  the end of the period of 56 days after the notice is given to the holder under this section.
(3)  The notice under this section must:
(a)  include an information notice about the suspension, and
(b)  state that the practitioner may make written representations to the Council about the suspension, and
(c)  state that the person may appeal against the suspension under section 108 (Appeal against certain decisions of Councils).
(4)  The holder may make written representations to the Council about the suspension, and the Council must consider the representations.
(5)  The Council may revoke the suspension at any time, whether or not in response to any written representations made to it by the holder.
(6)  Nothing in this section prevents a Council from making a complaint under Chapter 4 about a matter to which this section relates. The suspension of a local practising certificate under this section does not affect any disciplinary processes in respect of matters arising before the suspension.

79   Surrender of local practising certificate

The regulations may make provision for or with respect to:
(a)  the surrender of a local practising certificate (and, if appropriate, the grant or issue of another certificate), and
(b)  the cancellation of a surrendered certificate, and
(c)  the refund of a fee or portion of a fee paid in respect of a surrendered certificate.

80   Return of local practising certificate

(1)  This section applies if a local practising certificate granted to an Australian legal practitioner:
(a)  is amended, suspended or cancelled by the appropriate Council, or
(b)  is replaced by another certificate.
(2)  The appropriate Council may give the practitioner a notice requiring the practitioner to return the certificate to the Council in the way specified in the notice within a specified period of not less than 14 days.
(3)  The practitioner must comply with the notice, unless the practitioner has a reasonable excuse.

Maximum penalty: 20 penalty units.

(4)  The Council must return the practising certificate to the practitioner as soon as practicable:
(a)  if the certificate is amended—after amending it, or
(b)  if the certificate is suspended and is still current at the end of the suspension period—at the end of the suspension period.

Division 9 Practice as a barrister or solicitor

81   Practice as a barrister

(1)  Practice as a barrister is subject to the barristers rules.
(2)  Practice as a barrister is not subject to any other rules, practice guidelines or rulings of the Bar Association or Bar Council.

82   Practice as a solicitor

(1)  Practice as a solicitor is subject to the solicitors rules.
(2)  Practice as a solicitor is not subject to any other rules, practice guidelines or rulings of the Law Society or Law Society Council.

83   Client access

(1) Barristers
Barristers may accept any clients, subject to the barristers rules and the conditions of any relevant practising certificate.
(2) Solicitors
Solicitors may accept any clients, subject to the solicitors rules and the conditions of any relevant practising certificate.
(3) Contracts
A barrister or solicitor may enter into a contract for the provision of services with a client or with another legal practitioner. The barrister or solicitor may accordingly sue and be sued in relation to the contract.
(4) Barristers contracts
A barrister may enter into a contract with a client even though the barrister has accepted a brief from a solicitor in the matter.
(5) Immunity
Nothing in this section affects any law relating to immunity to suit in relation to advocacy.

84   Advertising

(1)  A barrister or solicitor may advertise in any way the barrister or solicitor thinks fit, subject to any regulations under section 85.
(2)  However, an advertisement must not be of a kind that is or that might reasonably be regarded as:
(a)  false, misleading or deceptive, or
(b)  in contravention of the Trade Practices Act 1974 of the Commonwealth, the Fair Trading Act 1987 or any similar legislation.
(3)  A contravention by a barrister or solicitor of subsection (2) is capable of being professional misconduct or unsatisfactory professional conduct, whether or not the barrister or solicitor is convicted of an offence in relation to the contravention.

85   Regulation of advertising and other marketing of services

(1)  The regulations may make provision for or with respect to regulating or prohibiting conduct by any person that relates to the marketing of legal services, including (without limitation) regulating or prohibiting any of the following:
(a)  advertising by a barrister or solicitor,
(b)  advertising by any person for or on behalf of a barrister or solicitor,
(c)  advertising by any person in connection with the provision of legal services,
(d)  advertising by any person of services connected with personal injury.
(2)  The regulations under this section may create an offence punishable by a penalty not exceeding 200 penalty units.
(3)  The Attorney General may direct a person in writing not to engage in conduct described in the direction if the Attorney General is satisfied that:
(a)  the conduct contravenes the regulations under this section, and
(b)  the person has been engaging in conduct of that or a similar kind.
(4)  The Tribunal may, on application made under subsection (5), direct a barrister or solicitor not to engage in conduct if the Tribunal is satisfied that:
(a)  the conduct contravenes the regulations under section 142 of the Workplace Injury Management and Workers Compensation Act 1998, and
(b)  the barrister or solicitor has been engaging in conduct of that or a similar kind.
(5)  An application made to the Tribunal may be made under this section by the appropriate Council or the Commissioner.
(6)  The Tribunal cannot deal with an application for a direction with respect to conduct that is the subject of a direction by the Attorney General under this section or by the appropriate Minister under section 142 of the Workplace Injury Management and Workers Compensation Act 1998. Any such ministerial direction may be given with respect to any conduct even if proceedings are pending before, or have been dealt with by, the Tribunal with respect to the conduct.
(7)  The following applies in connection with proceedings before the Tribunal under this section:
(a)  the parties to the proceedings are the applicant and the person to whom the direction is proposed to be given,
(b)  (Repealed)
(c)  the Tribunal is to conduct an initial ex parte hearing for the purpose of determining whether to issue a direction pending the final determination of the matter.
(8)  A person who contravenes a direction under this section is guilty of an offence.

Maximum penalty: 200 penalty units.

(9)  A contravention by a barrister or solicitor:
(a)  of a direction under this section or under section 142 of the Workplace Injury Management and Workers Compensation Act 1998 is professional misconduct, or
(b)  of a regulation under this section (or under section 142 of that Act) is professional misconduct, but only if the regulation declares that the contravention is professional misconduct.
(10)  The Attorney General is not required, before giving a direction under this section, to notify the person to whom the direction is given or any other person who may be affected by the direction.
(11)  A direction under this section may be amended or revoked.
(12)  (Repealed)
(13)  In this section:

personal injury includes pre-natal injury, impairment of a person’s physical or mental condition or a disease.

86   Specialisation

(1)  A barrister or solicitor must not advertise or hold himself or herself out as being a specialist or as offering specialist services, unless the barrister or solicitor:
(a)  has appropriate expertise and experience, or
(b)  is appropriately accredited under an accreditation scheme conducted or approved by the Bar Council or Law Society Council.
(2)  The Bar Council or Law Society Council is required to approve an accreditation scheme if directed to do so by the Attorney General.

87   Advocates

(1)  Barristers and solicitors may act as advocates.
(2)  Barristers and solicitors may appear, and have a right of audience, in any court as advocates.
(3)  Joint rules may be made about ethical rules to be observed by barristers and solicitors in the practice of advocacy.

88   Joint advocates

(1)  In any proceedings, one or more barristers and one or more solicitors may appear together as advocates.
(2)  The appearance together as advocates of a barrister and solicitor may be regulated by joint rules, but not by legal profession rules made by one Council only.

89   Attendance

(1)  There is no rule or practice that prevents a barrister from attending on another barrister or solicitor or a solicitor from attending on another solicitor or barrister.
(2)  Nothing in this section prevents arrangements being made between individual Australian legal practitioners with regard to attendance on each other.

90   Prohibition of official schemes for recognition of seniority or status

(1)  Any prerogative right or power of the Crown to appoint persons as Queen’s Counsel or to grant letters patent of precedence to counsel remains abrogated.
(2)  Nothing in this section affects the appointment of a person who was appointed as Queen’s Counsel before the commencement of this section.
(3)  Nothing in this section abrogates any prerogative right or power of the Crown to revoke such an appointment.
(4)  No law or practice prevents a person who was Queen’s Counsel immediately before the commencement of this section from continuing to be Queen’s Counsel while a barrister or solicitor.
(5)  Executive or judicial officers of the State have no authority to conduct a scheme for the recognition or assignment of seniority or status among legal practitioners.
(6)  Nothing in subsection (5) prevents the publication of a list of legal practitioners in the order of the dates of their admission, or a list of barristers or solicitors in the order of the dates of their becoming barristers or solicitors, or a list of Queen’s Counsel in their order of seniority.
(7)  In this section:

executive or judicial officers includes the Governor, Ministers of the Crown, Parliamentary Secretaries, statutory office holders, persons employed in the Public Service or by the State, an authority of the State or another public employer, and also includes judicial office holders or persons acting under the direction of the Chief Justice of New South Wales or other judicial office holder.

Queen’s Counsel means one of Her Majesty’s Counsel learned in the law for the State of New South Wales and extends to King’s Counsel where appropriate.

Division 10 Fees for practising certificates

91   Fee for practising certificate

(1)  A fee is payable for the grant or renewal of a local practising certificate of such amount as is determined by the appropriate Council and approved by the Attorney General.
(2)  A Council may determine different practising certificate fees according to such different factors as are specified in the determination and approved by the Attorney General.
(3)  A Council may waive payment of the practising certificate fee or any part of the fee.
(4)  Subject to the regulations (if any), a Council is to determine the practising certificate fee on a cost recovery basis, with the fee being such amount as is required from time to time for the purpose of recovering the costs of or associated with the regulatory functions of the Council or of the Bar Association or Law Society, as the case requires.
(5)  The regulatory functions of a Council, the Bar Association or the Law Society are its functions under this Act, and any other functions it exercises that are associated with the regulation of legal practice or maintaining professional standards of legal practice.
(6)  The practising certificate fee is not to include any charge for membership of the Bar Association or Law Society and is not to include any amount that is required for the purpose of recovering any costs of or associated with providing services or benefits to which local legal practitioners become entitled as members of the Bar Association or Law Society.
(7)  In addition, in determining the practising certificate fee, a Council must exclude costs that are otherwise recoverable under this Act (for example, costs payable from the Public Purpose Fund under this Act).
(8)  The regulations may make provision for or with respect to the determination of practising certificate fees, including by specifying the costs that may or may not be recovered by the charging of practising certificate fees.
(9)  In this section:

costs includes expenses.

92   Late fee

(1)  This section applies if an application for a local practising certificate is made during the late fee period.
(2)  Payment of a late fee prescribed by or determined under the regulations may, if the Council thinks fit, be required as a condition of acceptance of the application.

92A   Late fee for certain applications for new practising certificates

(1)  This section applies if an application for the grant of a local practising certificate to have effect during a financial year is made to a Council by a person who was the holder of a local practising certificate granted by the Council in respect of the previous financial year.
(2)  Payment of an additional fee prescribed by or determined under the regulations may, if the Council thinks fit, be required as a condition of acceptance of the application.

93   (Repealed)

94   Submission of budget to Attorney General

(1)  The Attorney General may from time to time require a Council to prepare and submit a budget to the Attorney General, in respect of such period as the Attorney General directs, relating to any costs (or projected costs) that are recoverable (or are proposed to be recovered) by the charging of a practising certificate fee.
(2)  The budget is to include such information as the Attorney General directs. In particular, the Attorney General may require the provision of information about the administration of the Council (including the Bar Association and the Law Society).
(3)  The Attorney General may refuse to approve the amount of a practising certificate fee under section 91 (Fee for practising certificate) if the Council has failed to submit a budget as required under this section.
(4)  In this section:

costs includes expenses.

95   Audit of Council activities

(1)  The Attorney General may appoint an appropriately qualified person to conduct an audit of all or any particular activities of a Council for the purpose of determining the following:
(a)  whether any activities the costs of which are recoverable, or are proposed to be recovered, by the charging of a practising certificate fee are being carried out economically and efficiently and in accordance with the relevant laws,
(b)  whether practising certificate fees are being expended for the purpose of defraying the costs in respect of which the fees are charged.
(2)  A Council is to provide all reasonable assistance to the person appointed to conduct the audit.
(3)  The person appointed to conduct the audit is to report to the Attorney General on the result of the audit.
(4)  An audit may be conducted under this section whenever the Attorney General considers it appropriate.
(5)  In this section:

audit includes an examination and inspection.

costs includes expenses.

Council includes the Bar Association and the Law Society.

Division 11 Interstate legal practitioners

96, 97   (Repealed)

98   Requirement for professional indemnity insurance

(1)  An interstate legal practitioner must not engage in legal practice in this jurisdiction, or represent or advertise that the practitioner is entitled to engage in legal practice in this jurisdiction, unless the practitioner:
(a)  is covered by professional indemnity insurance that:
(i)  covers legal practice in this jurisdiction, and
(ii)  has been approved under or complies with the requirements of the corresponding law of the practitioner’s home jurisdiction, and
(iii)  is for at least $1.5 million (inclusive of defence costs),
unless (without affecting subparagraph (i) or (ii)) the practitioner engages in legal practice solely as or in the manner of a barrister, or
(b)  is employed by a corporation or by a prescribed body, other than an incorporated legal practice, and the only legal services provided by the practitioner in this jurisdiction are in-house legal services.

Maximum penalty: 100 penalty units.

(2)  Subsection (1) does not apply to an interstate legal practitioner who:
(a)  is a government lawyer as defined in section 114, and
(b)  is engaged in legal practice in this jurisdiction only to the extent that the practitioner is engaging in government work, and
(c)  has an indemnity or immunity (whether provided by law or governmental policy) that is applicable in respect of that legal practice.

99   (Repealed)

100   Extent of entitlement of interstate legal practitioner to practise in this jurisdiction

(1)  This Division does not authorise an interstate legal practitioner to engage in legal practice in this jurisdiction to a greater extent than a local legal practitioner could be authorised under a local practising certificate.
(2)  Also, an interstate legal practitioner’s right to engage in legal practice in this jurisdiction:
(a)  is subject to:
(i)  any conditions imposed by the appropriate Council under section 101 (Additional conditions on practice of interstate legal practitioners), and
(ii)  any conditions imposed by or under the legal profession rules as referred to in that section, and
(b)  is, to the greatest practicable extent and with all necessary changes:
(i)  the same as the practitioner’s right to engage in legal practice in the practitioner’s home jurisdiction, and
(ii)  subject to any condition on the practitioner’s right to engage in legal practice in that jurisdiction, including any conditions imposed on his or her admission to the legal profession in this or another jurisdiction.
(3)  If there is an inconsistency between conditions mentioned in subsection (2) (a) and conditions mentioned in subsection (2) (b), the conditions that are, in the opinion of the appropriate Council, more onerous prevail to the extent of the inconsistency.
(4)  An interstate lawyer must not engage in legal practice in this jurisdiction in a manner not authorised by this Act or in contravention of any condition referred to in this section.
(5)  (Repealed)

101   Additional conditions on practice of interstate legal practitioners

(1)  The appropriate Council may, by written notice to an interstate legal practitioner engaged in legal practice in this jurisdiction, impose any condition on the practitioner’s practice that it may impose under this Act on a local practising certificate.
(2)  Also, an interstate legal practitioner’s right to engage in legal practice in this jurisdiction is subject to any condition imposed by or under an applicable legal profession rule.
(3)  Conditions imposed under or referred to in this section must not be more onerous than conditions applying to local legal practitioners.
(4)  A notice under this section must include an information notice about the decision to impose a condition.
(5)  An interstate legal practitioner must not contravene a condition imposed under this section.

102   Special provisions about interstate legal practitioner engaging in unsupervised legal practice as solicitor in this jurisdiction

(1)  An interstate legal practitioner must not engage in unsupervised legal practice as a solicitor in this jurisdiction unless:
(a)  if the interstate legal practitioner completed practical legal training principally under the supervision of an Australian lawyer, whether involving articles of clerkship or otherwise, to qualify for admission to the legal profession in this or another jurisdiction—the interstate legal practitioner has undertaken a period or periods equivalent to 18 months’ supervised legal practice, worked out under relevant regulations, after the day the practitioner’s first practising certificate was granted, or
(b)  if the interstate legal practitioner completed other practical legal training to qualify for admission to the legal profession in this or another jurisdiction—the interstate legal practitioner has undertaken a period or periods equivalent to 2 years’ supervised legal practice, worked out under relevant regulations, after the day the practitioner’s first practising certificate was granted.
(2)  Subsection (1):
(a)  does not apply if the interstate legal practitioner is exempt from the requirement for supervised legal practice in the practitioner’s home jurisdiction, or
(b)  applies only to the extent of a shorter period if the required period of supervised legal practice has been reduced for the interstate legal practitioner in the practitioner’s home jurisdiction.

103   Interstate legal practitioner is officer of Supreme Court

An interstate legal practitioner engaged in legal practice in this jurisdiction has all the duties and obligations of an officer of the Supreme Court, and is subject to the jurisdiction and powers of the Supreme Court in respect of those duties and obligations.

Division 12 Miscellaneous

104   Protocols

(1)  The Councils separately or jointly may enter into arrangements (referred to in this Division as protocols) with regulatory authorities of other jurisdictions about determining:
(a)  the jurisdiction from which an Australian lawyer engages in legal practice principally or can reasonably expect to engage in legal practice principally, or
(b)  the circumstances in which an arrangement under which an Australian legal practitioner practises in a jurisdiction:
(i)  can be regarded as being of a temporary nature, or
(ii)  ceases to be of a temporary nature, or
(c)  the circumstances in which an Australian legal practitioner can reasonably expect to engage in legal practice principally in a jurisdiction during the currency of an Australian practising certificate.
(2)  For the purposes of this Act, and to the extent that the protocols are relevant, a matter referred to in subsection (1) (a), (b) or (c) is to be determined in accordance with the protocols.
(3)  The Councils may enter into arrangements that amend, revoke or replace a protocol.
(4)  A protocol does not have effect in this jurisdiction unless it is embodied or identified in the regulations.

105   Consideration and investigation of applicants or holders

(1)  To help it consider whether or not to grant, renew, amend, suspend or cancel a local practising certificate, a Council 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 Council, or
(c)  to co-operate with any inquiries by the Council 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 Council.
(3)  Without limiting subsection (2), a failure to comply with a requirement for medical examination may be accepted by the Council as evidence of the unfitness of the person to engage in legal practice.

106   Register of local practising certificates

(1)  A Council must keep a register of the names of Australian lawyers to whom it grants local practising certificates.
(2)  The regulations may make provision for or with respect to the following:
(a)  the information that may be included in the register,
(b)  the information that must be included in the register,
(c)  the notification by local legal practitioners to the appropriate Council of changes of particulars,
(d)  the notification by the Council to other authorities of particulars contained in the register,
(e)  the removal of information from the register relating to former holders of certificates.
(3)  The register must state the conditions (if any) imposed on a local practising certificate in relation to engaging in legal practice.
(4)  A condition imposed on a local practising certificate relating to infirmity, injury or mental or physical illness is not to be stated on the register unless:
(a)  the condition restricts the holder’s right to engage in legal practice, or
(b)  the holder consents to the condition being stated on the register.
(5)  The register may be kept in the way the Council decides.
(6)  The Council may publish, in circumstances that it considers appropriate, the names of persons kept on the register and any other information included in the register concerning those persons.
(7)  The register must be available for inspection, without charge, at the Council’s office during normal business hours.

107   Orders or injunctions

(1)  The Commissioner or a Council may apply to the Supreme Court for an order or injunction that a local legal practitioner not contravene a condition imposed under this Part.
(2)  The Commissioner or a Council may apply to the Supreme Court for an order or injunction that an interstate legal practitioner not contravene a requirement of section 100 (4) (Extent of entitlement of interstate legal practitioner to practise in this jurisdiction).
(3)  No undertaking as to damages or costs is required.
(4)  The Supreme Court may grant an order or injunction on such terms as it considers appropriate, and make any order it considers appropriate, on the application.
(5)  This section does not affect the generality of section 720 (Injunctions).

108   Appeal against certain decisions of Councils

(1)  A person who is dissatisfied with any of the following decisions of a Council may appeal to the Supreme Court against the decision:
(a)  a decision to refuse to grant or renew a local practising certificate, or
(b)  a decision to amend, suspend or cancel a local practising certificate.
(2)  The Supreme Court may make such order in the matter as it thinks fit.
(3)  Except to the extent (if any) that may be ordered by the Supreme Court, the lodging of an appeal does not stay the effect of the refusal, cancellation, amendment or suspension appealed against.
(4)  This section does not apply to a decision under Division 7.

109   Attorney General

The Attorney General, while admitted to the legal profession in this or any other jurisdiction, is entitled to an unconditional practising certificate. The Attorney General may elect to hold a practising certificate as a barrister or as a solicitor.

110   Crown Solicitor

(1)  The Crown Solicitor may, in his or her official capacity, act as solicitor for:
(a)  the State of New South Wales, or
(b)  a person suing or being sued on behalf of the State of New South Wales, or
(c)  a Minister of the Crown in his or her official capacity as such a Minister, or
(d)  a body established by an Act or other law of New South Wales, or
(e)  an officer or employee of the Public Service or any other service of the State of New South Wales or of a body established by an Act or other law of New South Wales, or
(f)  a person holding office under an Act or other law of New South Wales or because of the person’s appointment to that office by the Governor or a Minister of the Crown, or
(g)  any other person or body, or any other class of persons or bodies, approved by the Attorney General.
(2)  The Crown Solicitor may act under subsection (1):
(a)  with or without charge, or
(b)  for a party in a matter that is not the subject of litigation, even if also acting under that subsection for another party in the matter.
(3)  The Crown Solicitor may, in his or her official capacity, act as agent for:
(a)  another State or a Territory, or
(b)  at the request of another State or a Territory—an instrumentality of, or a person in the service of, that State or Territory.
(4)  If, under subsection (1) (g), the Crown Solicitor is given approval to act as solicitor for a Minister of the Crown (otherwise than in his or her official capacity as such a Minister), the following must be included in the annual report under the Annual Reports (Departments) Act 1985 of the Crown Solicitor’s activities:
(a)  the name of the Minister,
(b)  the matter in which the Crown Solicitor acted (but without disclosure of any confidential client information),
(c)  the costs incurred by the Crown Solicitor in acting for the Minister and the amount charged to the Minister for so acting.
(5)  In this section, a reference to a State or a Territory includes a reference to the Crown in right of the State or Territory and to the Government of the State or Territory.

111   Government and other lawyers—exemption from certain conditions

(1)  This section applies to each of the following persons:
(a)  a local legal practitioner who is the holder of a statutory position under the Crown (whether in the right of this jurisdiction or in another right),
(b)  a local legal practitioner who acts as parliamentary counsel under a contract of service, or contract for services, with the Crown (whether in the right of this jurisdiction or in another right),
(c)  a local legal practitioner who is, or is a member of a class or description of local legal practitioners, specified by the appropriate Council for the purposes of this subsection,
(d)  a local legal practitioner who is, or is a member of a class or description of local legal practitioners, specified by the regulations for the purposes of this subsection,
while the person is a local legal practitioner to whom at least one of the paragraphs of this subsection applies.
(2)  The local practising certificate of a person to whom this section applies is not subject to conditions of the kind referred to in section 50 (3) (a), (b) and (d) (Conditions imposed by Council) or 56 (1) (Additional conditions on practising certificates of barristers), other than a condition relating to continuing legal education.

112   Government lawyers—exemption from certain provisions

(1)  Nothing in Division 9 (Practice as a barrister or solicitor) affects:
(a)  practice as a barrister as the holder of a statutory office under the Crown (whether in right of New South Wales or in another right), or
(b)  practice as parliamentary counsel under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right).
(2)  This section does not limit the operation of section 114 (Government lawyers of other jurisdictions).

113   Government lawyers—imposition of additional conditions

Without limiting section 50 (Conditions imposed by Council), the Bar Council may under that section impose conditions of the following kinds on the local practising certificate of a barrister:
(a)  a condition limiting the holder to practising as a barrister as the holder of a statutory office under the Crown (whether in right of New South Wales or in another right),
(b)  a condition limiting the holder to practising as a barrister in any other office under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right),
(c)  a condition limiting the holder to practising as parliamentary counsel under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right).

114   Government lawyers of other jurisdictions

(1)  A government lawyer of another jurisdiction is not subject to:
(a)  any prohibition under this Act about:
(i)  engaging in legal practice in this jurisdiction, or
(ii)  making representations about engaging in legal practice in this jurisdiction, or
(b)  conditions imposed on a local practising certificate, or
(c)  requirements of legal profession rules, or
(d)  professional discipline,
in respect of the performance of his or her official duties or functions as a government lawyer of the other jurisdiction to the extent that he or she is exempt from matters of the same kind under a law of the other jurisdiction.
(2)  Contributions and levies are not payable to the Fidelity Fund by or in respect of a government lawyer of another jurisdiction in his or her capacity as a government lawyer.
(2A)  Without affecting the generality of subsection (1), that subsection extends to prohibitions under section 98 relating to professional indemnity insurance.
(3)  Without affecting subsections (1), (2) and (2A), nothing in this section prevents a government lawyer of another jurisdiction from being granted or holding a local practising certificate.
(4)  In this section:

another jurisdiction means:

(a)  another State or Territory of the Commonwealth, or
(b)  the Commonwealth.

government agency of another jurisdiction means:

(a)  a government department of that jurisdiction, or
(b)  a body or organisation that is established by or under the law of that jurisdiction for a public purpose or to exercise governmental functions,
and includes a body or organisation (or a class of bodies or organisations) prescribed by the regulations as being within this definition.

government lawyer means an Australian lawyer, or a person eligible for admission to the legal profession, employed in or by a government agency of another jurisdiction.

115   Non-compellability of certain witnesses

(1)  A person referred to in section 601 (Protection from liability) is not compellable in any legal proceedings to give evidence or produce documents in respect of any matter in which the person was involved in the course of the administration of this Part.
(2)  This section does not apply to:
(a)  proceedings under Part 3 of the Royal Commissions Act 1923, or
(b)  proceedings before the Independent Commission Against Corruption, or
(c)  a hearing under the Special Commissions of Inquiry Act 1983, or
(d)  an inquiry under the Ombudsman Act 1974.
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