Schedule 3 Amendments consequential on enactment of Legal Profession Act 2004 No 112
(Section 3)
The Legal Profession Act 2004 introduced new terms to distinguish between different types of lawyers. In particular, the Act introduced the concept of an Australian lawyer (a person who is admitted to the legal profession under the Act or a corresponding law) and an Australian legal practitioner (an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate). Currently, the meanings of Australian legal practitioner and Australian lawyer are contained in the Interpretation Act 1987 for ease of reference in other Acts.
3.1 Criminal Records Act 1991 No 8
Section 13 Unlawful disclosure of information concerning spent convictions
Omit paragraph (n) of the definition of law enforcement agency in section 13 (5).Insert instead:
(n) an Australian legal practitioner to the extent to which the Australian legal practitioner is engaged by or on behalf of the Crown to prosecute an offence,
Section 13 of the Criminal Records Act 1991 makes it an offence to disclose information concerning a spent conviction. However, the section contains exceptions for law enforcement agencies. The proposed amendment includes an Australian legal practitioner (to the extent to which he or she is engaged by or on behalf of the Crown to prosecute an offence) within the definition of law enforcement agency.
3.2 Crown Advocate Act 1979 No 59
Section 3 Appointment of Crown Advocate
Omit “a legal practitioner” from section 3 (1).Insert instead “an Australian legal practitioner”.
The proposed amendment to the Crown Advocate Act 1979 enables the Governor to appoint an Australian legal practitioner of at least 7 years’ standing as Crown Advocate.
3.3 Petroleum (Onshore) Act 1991 No 84
Section 69I Right of appearance
Omit “a barrister or a solicitor” wherever occurring in section 69I (2) (a) and (b).Insert instead “an Australian legal practitioner”.
The proposed amendment to the Petroleum (Onshore) Act 1991 provides that any party to a hearing into the question of access to any land by the holder of a prospecting title may be represented by an Australian legal practitioner with the leave of the arbitrator and the agreement of the parties.
3.4 Prisoners (Interstate Transfer) Act 1982 No 104
Sections 14 (3) (a) and 16 (2)
Omit “a legal practitioner” wherever occurring.Insert instead “an Australian legal practitioner”.
The proposed amendment to the Prisoners (Interstate Transfer) Act 1982 provides that a prisoner is entitled to be represented by an Australian legal practitioner in certain circumstances.
3.5 Professional Standards Act 1994 No 81
Section 5 Occupational liability to which Act does not apply
Omit “a legal practitioner” from section 5 (3).Insert instead “an Australian legal practitioner”.
The proposed amendment to the Professional Standards Act 1994 provides that the exclusion from the operation of the Act of liability for damages arising from the death of or personal injury to a person does not extend to liability for damages arising out of any negligence or other fault of an Australian legal practitioner in acting for a client in a personal injury claim.
3.6 Property, Stock and Business Agents Act 2002 No 66
[1] Section 5 Exemptions from Act
Omit “a legal practitioner” from section 5 (2) wherever occurring.Insert instead “an Australian legal practitioner”.
[2] Section 47 Duty of disclosure to client and prospective buyer of land
Omit “legal practitioner” from the note to section 47 (1).Insert instead “Australian legal practitioner”.
[3] Section 60 Agency agreement can be rescinded during cooling-off period
Omit “solicitor” and “solicitors” from section 60 (2) (b).Insert instead “Australian legal practitioner” and “Australian legal practitioners”, respectively.
[4] Section 64 Contracts for sale of residential property
Omit “the purchaser’s solicitor’s name and address” from section 64 (1) (a).Insert instead “the name and address of the Australian legal practitioner acting for the purchaser”.
Omit “a solicitor” and “the solicitor”.Insert instead “an Australian legal practitioner” and “the Australian legal practitioner”, respectively.
Omit the definition of solicitor. Insert instead:Australian legal practitioner includes a licensee under the Conveyancers Licensing Act 2003.
[7] Section 153 Examination by receiver
Omit “a solicitor or barrister” from section 153 (2) (a).Insert instead “an Australian legal practitioner”.
Item [1] of the proposed amendments to the Property, Stock and Business Agents Act 2002 provides that the Act does not prevent an Australian legal practitioner from exercising any function that, had the Act not been enacted, he or she might lawfully have exercised as an Australian legal practitioner.Item [2] of the proposed amendments provides that the relationship between an agent and an Australian legal practitioner is an example of a relationship that should be disclosed to the person for whom the agent is acting.
Item [3] of the proposed amendments provides that the notice rescinding an agency agreement must be signed by the client or the client’s Australian legal practitioner.
Items [4]–[6] of the proposed amendments amend section 64 to provide that:
(a) a real estate agent may insert the name and address of the Australian legal practitioner acting for the purchaser in a contract for the sale of residential property, and(b) a real estate agent is not to participate in an exchange of contracts if it is apparent that an Australian legal practitioner is or will be acting for a prospective party to the contract, and(c) for the purposes of the section, “Australian legal practitioner” includes a licensee under the Conveyancers Licensing Act 2003.Item [7] of the proposed amendments provides that an Australian legal practitioner may represent a licensee or other person who is subject to examination by a receiver.
3.7 Public Finance and Audit Act 1983 No 152
Omit “Legal Practitioners Admission Board constituted by the Legal Profession Act 1987”.Insert instead “Legal Profession Admission Board constituted under the Legal Profession Act 2004”.
The proposed amendment to the Public Finance and Audit Act 1983 updates a reference so that the Legal Profession Admission Board is treated as a statutory body for the purposes of the auditing provisions in Division 3 of Part 3 of that Act.
3.8 Public Health Act 1991 No 10
[1] Section 35 Restrictions on publication
Omit “legal practitioners” from section 35 (5) (a).Insert instead “Australian lawyers”.
[2] Section 39 Representation in proceedings under Division 6
Omit “a barrister or solicitor” wherever occurring.Insert instead “an Australian legal practitioner”.
Item [1] of the proposed amendments to the Public Health Act 1991 updates a reference so that the restriction on the publication of information concerning proceedings under Division 6 of Part 3 of that Act does not apply in respect of a publication intended to be read mainly by Australian lawyers.Item [2] of the proposed amendments provides that a party to proceedings under Division 6 of Part 3 of that Act may be represented by an Australian legal practitioner.
3.9 Registered Clubs Act 1976 No 31
Omit “a legal practitioner” from section 41Y (1) (b).Insert instead “an Australian lawyer”.
The proposed amendment to the Registered Clubs Act 1976 gives an Australian lawyer of at least 7 years’ standing who is presiding at an inquiry in relation to a registered club certain powers and authorities conferred on a commissioner by Division 2 of Part 2 of the Royal Commissions Act 1923 (if expressly stated in his or her instrument of appointment to preside at the inquiry).