Part 7.3 Legal Services Commissioner
686 Appointment of Commissioner
(1) The Governor may, on the recommendation of the Attorney General, appoint a person to be Legal Services Commissioner.
(2) The person so appointed is to be a person who, in the opinion of the Attorney General:
(a) is familiar with the nature of the legal system and legal practice (but need not be an Australian legal practitioner), and
(b) possesses sufficient qualities of independence, fairness and integrity.
(3) Schedule 2A contains provisions relating to the Legal Services Commissioner.
(4), (5) (Repealed)
687 Acting Commissioner
(1) The Attorney General may, from time to time, appoint a person to act in the office of the Commissioner during the illness or absence of the Commissioner (or during a vacancy in the office of Commissioner) and a person, while so acting, has all the functions of the Commissioner.
(2) The Attorney General may, at any time, remove a person from the office of acting Commissioner.
(3) The acting Commissioner is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Attorney General may from time to time determine.
688 Functions of Commissioner
(1) The Commissioner has, in accordance with this Act, the following functions:
(a) to receive complaints about unsatisfactory professional conduct or professional misconduct of Australian lawyers or Australian-registered foreign lawyers,
(b) to assist and advise complainants and potential complainants in making and pursuing complaints (including assisting complainants to clarify their complaints and to put their complaints in writing),
(c) to initiate a complaint against an Australian lawyer or an Australian-registered foreign lawyer,
(d) to investigate, or take over the investigation of, a complaint if the Commissioner considers it appropriate,
(e) to refer complaints to the appropriate Council for investigation or mediation in appropriate cases,
(f) to monitor investigations and give directions and assistance to Councils in connection with the investigation of complaints,
(g) to review the decisions of Councils to dismiss complaints or to reprimand Australian lawyers or Australian-registered foreign lawyers in connection with complaints,
(h) to take over investigations or to institute proceedings in the Tribunal against Australian lawyers or Australian-registered foreign lawyers following a review by the Commissioner,
(i) to conduct regular surveys of, and report on, the views and levels of satisfaction of complainants and respondent Australian lawyers with the complaints handling and disciplinary system,
(j) to monitor the refusal to grant, cancellation and suspension of practising certificates under Part 2.4 on grounds relating to fitness to practise (for example, in connection with acts of bankruptcy, the commission of indictable offences or tax offences or failures to give required notifications),
(k) functions conferred on the Commissioner under Division 7 of Part 2.4 and Part 4.7 of Chapter 4,
(l) to review the provisions and operations of Chapter 4 in accordance with section 494 (4),
(m) to monitor generally the exercise of regulatory functions by the Councils (other than the imposition of conditions on practising certificates),
(n) to review legal profession rules,
(o) to assist the Councils to promote community education about the regulation and discipline of the legal profession,
(p) to assist the Councils in the enhancement of professional ethics and standards, for example, through liaison with legal educators or directly through research, publications or educational seminars,
(q) to report on the Commissioner’s activities under this Act.
(2) The Commissioner may appear by barrister or solicitor before, and be heard by, the Supreme Court in the exercise of the functions of the Supreme Court under this Act or otherwise in relation to Australian lawyers.
(3) The Commissioner has such other functions as are conferred or imposed on the Commissioner by or under this or any other Act.
(4) A reference in this section and in section 689 (1) (c) and 691 (5):
(a) to an Australian lawyer is a reference to an Australian lawyer to whom Chapter 4 applies, or
(b) to an Australian-registered foreign lawyer is a reference to an Australian-registered foreign lawyer to whom Chapter 4 applies.
689 Commissioner may require Councils to provide information
(1) The Commissioner may, for the purpose of exercising the Commissioner’s functions, do any of the following:
(a) require a Council to provide information received by the Council that gives the Council reason to believe that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct,
(b) require a Council to provide information relating to an application for a local practising certificate,
(c) require a Council to provide information relating to a notification made by an Australian lawyer or an Australian-registered foreign lawyer for the purpose of complying with this Act or the regulations,
(d) require a Council to notify the Commissioner of the Council’s intention to grant, refuse to grant, cancel or suspend a local practising certificate.
(2) A requirement by the Commissioner under this section may relate to a specific case or may be made in general terms so as to relate to all cases or to a class of cases.
(3) A Council must take into account any representations made by the Commissioner on a matter under this section.
689A Functions of Commissioner in relation to advertising offences
(1) In addition to the Commissioner’s other functions, the Commissioner may institute prosecutions for an offence against section 85 (Regulation of advertising and other marketing of services) or regulations made under that section.
(2) If the Commissioner suspects on reasonable grounds that a person (whether or not an Australian lawyer) may have committed an offence against section 85 or regulations made under that section, the Commissioner or a person authorised by the Commissioner may conduct an investigation in relation to the matter.
(3) The Commissioner or authorised person has and may exercise, in relation to the matter referred to in subsection (2), the same powers as an investigator has under Chapter 6 (Provisions relating to investigations) in relation to a matter that is the subject of a complaint under Chapter 4 (Complaints and discipline).
(4) Accordingly, the provisions of Chapter 6 apply in relation to the matter referred to in subsection (2), and so apply with any necessary modifications and as if a reference to an Australian lawyer included a reference to a lay person.
(5) This section does not limit any powers that may be exercised apart from this section by the Commissioner or by any other person.
690 Protocols relating to monitoring of regulatory functions
The Commissioner may, in consultation with each of the Councils, develop protocols relating to the exercise of the Commissioner’s functions under section 688 (1) (j) and (l).
691 Annual report of Commissioner
(1) As soon as practicable after 30 June (but before 31 December) in each year, the Commissioner is to prepare and forward to the Attorney General a report on his or her activities for the 12 months ending on 30 June in that year.
(2) The Attorney General is to lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after receiving the report.
(3) The Commissioner is to include the following information in the annual report:
(a) the number and type of complaints made during the year (including the number and type made by the Commissioner and the number and type made by each Council),
(b) the sources of those complaints,
(c) the number of consumer disputes referred to mediation during the year and the results of mediation,
(d) the number and type of complaints investigated during the year by each Council, the Commissioner and an independent investigator under section 532,
(e) the number and type of complaints dismissed during the year by each Council and by the Commissioner,
(f) the number and type of complaints in respect of which an Australian lawyer was reprimanded or cautioned during the year by each Council and by the Commissioner,
(g) the number and type of complaints in respect of which proceedings were instituted in the Tribunal during the year by each Council and by the Commissioner,
(h) the number of matters referred to mediation under section 336 or Part 4.3 during the year and the outcome of those matters,
(i) the number of compensation orders made under Part 4.9 during the year,
(j) a summary of the results of proceedings in the Tribunal completed during the year,
(k) the number of complaints not finally dealt with at the end of the year (including the number at each stage of proceedings),
(l) the age of complaints not finally dealt with at the end of the year (that is, the number of those complaints made respectively in that year and in each previous year),
(m) time intervals involved in the complaints process, including:
(i) the time between the receipt of a complaint and the decision of the Commissioner or a Council under Part 4.5 in respect of the complaint, and
(ii) the time between the receipt of a complaint and the decision of the Commissioner on completion of a review under Part 4.6,
(n) information about any review of a legal profession rule requested by the Commissioner during the year under this Act,
(o) information on the operation of the complaints process during the year and any recommendations for legislative or other improvements to the complaints process,
(p) information about the costs incurred by the Commissioner during the year, certified by the Auditor-General,
(q) such other information as the Commissioner considers appropriate to be included or as the Attorney General directs to be included.
(4) The Commissioner may include in the annual report a report on the exercise of functions by the Commissioner referred to in section 688 (1) (j), (k) and (l).
(5) Matters included in a report must not identify individual clients, Australian lawyers or Australian-registered foreign lawyers unless their names have already lawfully been made public under Part 4.10 (Publishing disciplinary action).
692 Staff of Commissioner
(1) Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commissioner to exercise his or her functions.
Note. Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Commissioner makes use of) may be referred to as officers or employees, or members of staff, of the Commissioner. Section 47A of the Constitution Act 1902 precludes the Commissioner from employing staff.
(3) The Commissioner may arrange for the use of the services of any staff (by secondment or otherwise) or facilities of a government agency or other public authority. Any staff of whose services the Commissioner makes use is taken to be staff of the Commissioner for the purposes of this Act.
(4) The Commissioner may, with the approval of the Attorney General, engage consultants or other persons for the purpose of getting assistance.
693 Delegation of functions
The Commissioner may delegate any of his or her functions (other than this power of delegation) to any member of the staff of the Commissioner or to a person of a class prescribed by the regulations.