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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Legal Practitioners (Miscellaneous) Amendment
Bill 2016
A BILL FOR
An Act to amend the
Legal
Practitioners Act 1981
.
Contents
Part 2—Amendment of Legal
Practitioners Act 1981
4Amendment of section
5—Interpretation
5Amendment of section 5A—Terms relating to
associates and principals of law practices
6Amendment of section 53—Duty to deposit
trust money in combined trust account
8Amendment of section
77—Delegation
9Amendment of section 77B—Investigations
by Commissioner
10Amendment of section 77D—Notification of
complaint to practitioner
11Amendment of section 77H—Report on
investigation
12Amendment of section 77K—Appeal against
determination of Commissioner
13Amendment of section 77N—Investigation
of allegation of overcharging
14Amendment of section 84—Powers of
Tribunal
15Amendment of section
89B—Definitions
16Amendment of section 89C—Register of
Disciplinary Action
17Amendment of Schedule 1—Incorporated
legal practices
18Amendment of Schedule 2—Trust money and
trust accounts
19Amendment of Schedule 3—Costs disclosure
and adjudication
20Amendment of Schedule 4—Investigatory
powers
Schedule 5—Transitional
provisions
1Closure of certain
complaints
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Legal Practitioners (Miscellaneous)
Amendment Act 2016.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Legal Practitioners
Act 1981
4—Amendment
of section 5—Interpretation
(1) Section 5(1), definition of approved
auditor—delete the definition
(2) Section 5(1), definition of law practice,
(b)—delete paragraph (b) and substitute:
(b) a firm of—
(i) legal practitioners; or
(ii) incorporated legal practices; or
(iii) legal practitioners and incorporated legal practices; or
(3) Section 5(1), definition of law practice,
(c)—after "practice" insert:
that practises on its own account
(4) Section 5(1)—after the definition of participating
State insert:
partner includes—
(a) an incorporated legal practice that engages in legal practice as a
member of a firm of incorporated legal practices or a firm of legal
practitioners and incorporated legal practices; and
(b) a legal practitioner director of an incorporated legal practice
referred to in paragraph (a);
(5) Section 5(3)—after "partner of the practitioner,"
insert:
or by a corporation of which the practitioner is a director,
5—Amendment
of section 5A—Terms relating to associates and principals of law
practices
(1) Section 5A(1)(a)—after subparagraph (iii) insert:
(iiia) a legal practitioner director in an incorporated legal practice
that is a member of the law practice (in the case of a firm of incorporated
legal practices or a firm of legal practitioners and incorporated legal
practices); or
(2) Section 5A(3)(b)—after "legal practitioners" insert:
or of incorporated legal practices or of both
(3) Section 5A(3)(c)—after "incorporated legal practice"
insert:
that is a law practice
(4) Section 5A(3)—after paragraph (c) insert:
(ca) a legal practitioner director of an incorporated legal practice that
is a member of the law practice (in the case of a firm of incorporated legal
practices); or
6—Amendment
of section 53—Duty to deposit trust money in combined trust
account
Section 53(6)—after "a firm of legal practitioners" insert:
or a firm of incorporated legal practices or a firm of legal practitioners
and incorporated legal practices
Before section 68 insert:
67AB—Application of Part
This Part does not apply to the conduct of a legal practitioner or former
legal practitioner—
(a) who is a judicial officer (within the meaning of the
Judicial
Conduct Commissioner Act 2015
) acting in his or her capacity as a judicial officer; or
(b) who is the Commissioner acting in his or her capacity as Commissioner;
or
(c) insofar as the practitioner is exercising a function or power of the
Commissioner in accordance with a delegation under section 77; or
(d) who is—
(i) a member of the Commissioner's staff; and
(ii) acting in his or her capacity as a member of the Commissioner's
staff,
(but nothing in this paragraph is to be taken to exclude the application of
this Part to the conduct of a member of the Commissioner's staff that relates to
the member's conduct in appearing on behalf of the Commissioner in proceedings
before the Tribunal or the Supreme Court); or
(e) holding or acting in the office of the Independent Commissioner
Against Corruption or the office of the Deputy Commissioner under the
Independent
Commissioner Against Corruption Act 2012
.
8—Amendment
of section 77—Delegation
Section 77—after subsection (3) insert:
(4) For the purposes of section 17(1)(c)(ii) of the
Public
Sector (Honesty and Accountability) Act 1995
, delegation by the Commissioner of a function or power under this section
because of a pecuniary or other personal interest that conflicts or may conflict
with the Commissioner's duties does not constitute taking action in relation to
the matter the subject of the delegation.
9—Amendment
of section 77B—Investigations by Commissioner
(1) Section 77B(2)—delete "section 77C" and substitute:
this section and sections 67AB and 77C
(2) Section 77B(2)(b)—delete "a complaint" and substitute:
a written complaint that complies with subsection (3a)
(3) Section 77B—after subsection (3) insert:
(3a) A complaint must—
(a) identify the complainant; and
(b) if possible, identify the legal practitioner or former legal
practitioner about whom the complaint is made; and
(c) describe the alleged conduct the subject of the complaint.
(3b) A person who is subject to an order under section 39 of the
Supreme
Court Act 1935
prohibiting him or her from instituting proceedings (or proceedings of a
particular class) may not make a complaint under this section.
(3c) A complaint must be made to the Commissioner within 3 years of
the conduct that is the subject of the complaint or such longer period as the
Commissioner may allow.
10—Amendment
of section 77D—Notification of complaint to
practitioner
Section 77D(1)(c)—after "determination" insert:
(other than a determination not to investigate, or to close, a
complaint)
11—Amendment
of section 77H—Report on investigation
(1) Section 77H(2)—delete "the Commissioner must" and
substitute:
the Commissioner may
(2) Section 77H—after subsection (2) insert:
(2a) However, if the information or evidence suggests that a serious
offence has been committed, the Commissioner must pass the information or
evidence on to the Crown Solicitor.
12—Amendment
of section 77K—Appeal against determination of
Commissioner
Section 77K—after subsection (3) insert:
(3a) Subject to
subsections
(3b)
and
(3c)
, the Tribunal will, in exercising its review jurisdiction, examine the
determination of the Commissioner by way of rehearing.
(3b) On a
rehearing, the Tribunal must reach the correct or preferable decision but in
doing so must have regard to, and give appropriate weight to, the determination
of the Commissioner.
(3c) A procedure on
a rehearing will include—
(a) an examination of the evidence or material before the Commissioner
(unless any such evidence or material is to be excluded under another provision
of this Act or under any other law); and
(b) a consideration of any further evidence or material that the Tribunal
decides, in the circumstances of the particular case, to admit for the purposes
of rehearing the matter.
13—Amendment
of section 77N—Investigation of allegation of
overcharging
(1) Section 77N(6)(a)—after "complainant" insert:
, the client to whom the bill was delivered (if that client is not the
complainant)
(2) Section 77N(7)(c)—after "complainant" insert:
, the client to whom the bill was delivered (if that client is not the
complainant)
(3) Section 77N(8)(a)—after "complainant" insert:
, the client to whom the bill was delivered (if that client is not the
complainant)
14—Amendment
of section 84—Powers of Tribunal
(1) Section 84(7)(a)—delete "of any State" and substitute:
or tribunal of any State or the Commonwealth
(2) Section 84(7)(b)—after "court" insert:
or tribunal
15—Amendment
of section 89B—Definitions
Section 89B, definition of disciplinary action—after
paragraph (a) insert:
(ab) the making of an order by the Supreme Court suspending a legal
practitioner's practising certificate; or
16—Amendment
of section 89C—Register of Disciplinary Action
Section 89C—after subsection (7) insert:
(7a) The Commissioner may cause information about disciplinary action to
be removed from the Register in the circumstances prescribed by regulation (if
any).
17—Amendment
of Schedule 1—Incorporated legal practices
(1) Schedule 1—after clause 3 insert:
3A—Incorporated legal practices may practise in
partnership
Subject to this Act, an incorporated legal practice may practise in
partnership with another incorporated legal practice or a legal practitioner (or
both).
(2) Schedule 1—after clause 4 insert:
4A—Notice to be given by incorporated legal
practice of intention to practise in partnership
(1) Before an
incorporated legal practice starts to engage in legal practice in this
jurisdiction in partnership with another incorporated legal practice or a legal
practitioner (or both), the practice must give the Supreme Court written notice,
in the approved form, and accompanied by the prescribed fee, of its intention to
do so.
(2) An incorporated
legal practice must not engage in legal practice in this jurisdiction in
partnership with an incorporated legal practice or a legal practitioner (or
both) if it is in default of this clause.
Maximum penalty: $50 000.
(3) An incorporated
legal practice that starts to engage in legal practice in this jurisdiction in
partnership with an incorporated legal practice or a legal practitioner (or
both) without giving a notice under
subclause (1)
is in default of this clause until it gives the Supreme Court written
notice, in the approved form, of the failure to comply with that subclause and
the fact that it has started to engage in legal practice in partnership with an
incorporated legal practice or a legal practitioner.
(4) The giving of a notice under
subclause (3)
does not affect an incorporated legal practice's liability under
subclause (1)
or
(2)
.
(5) A firm of incorporated legal practices, or of incorporated legal
practices and legal practitioners, is not entitled to recover any amount for
anything the firm did while a member of the firm was in contravention of
subclause (2)
.
(6) A person may recover from a firm of incorporated legal practices, or
of incorporated legal practices and legal practitioners, as a debt due to the
person, any amount the person paid to or at the direction of the firm for
anything the firm did while a partner of the firm was in contravention of
subclause (2)
.
(7) This clause does not apply in relation to—
(a) a firm of
incorporated legal practices, or of incorporated legal practices and legal
practitioners, if the firm—
(i) was established before the commencement of this clause; and
(ii) engaged in legal practice in this jurisdiction immediately before the
commencement of this clause; or
(b) an incorporated legal practice that was a member of a firm referred to
in
paragraph (a)
immediately before the commencement of this clause insofar as the practice
engages in legal practice as a member of the firm.
(3) Schedule 1—after clause 5 insert:
5A—Notice to be given by incorporated legal
practice providing legal services in partnership
(a) an incorporated
legal practice that—
(i) immediately before the relevant day—
(A) was a legal practitioner within the meaning of this Act (as in force
immediately before the relevant day); and
(B) was practising in partnership with another legal practitioner;
and
(ii) immediately before the commencement of this clause, continued to
practise in the partnership; and
(b) an incorporated legal practice that, after the relevant day but before
the commencement of this clause—
(i) commenced practising in partnership with another incorporated legal
practice or a legal practitioner (or both); and
(ii) immediately before the commencement of this clause, continued to
practise in the partnership.
(2) An incorporated
legal practice to which this clause applies must, if it intends to continue to
engage in legal practice in this jurisdiction in partnership with another
incorporated legal practice or a legal practitioner (or both), within 28 days
following the commencement of this clause, give the Supreme Court written
notice, in the approved form and accompanied by the prescribed fee, of that
intention.
(3) An incorporated
legal practice to which this clause applies must not engage in legal practice in
this jurisdiction in partnership with an incorporated legal practice or a legal
practitioner (or both) if it is in default of this clause.
Maximum penalty: $50 000.
(4) An incorporated
legal practice to which this clause applies that engages in legal practice in
this jurisdiction in partnership with another incorporated legal practice or a
legal practitioner (or both) after the end of the 28 day period referred to
in
subclause (2)
without giving a notice under that subclause is in default of this clause
until it gives the Supreme Court written notice, in the approved form, of the
failure to comply with that subclause and the fact that it has continued to
engage in legal practice in partnership with another incorporated legal practice
or a legal practitioner (or both).
(5) The giving of a notice under
subclause (4)
does not affect an incorporated legal practice's liability under
subclause (2)
or
(3)
.
(6) A firm of incorporated legal practices, or of incorporated legal
practices and legal practitioners, is not entitled to recover any amount for
anything the firm did while a member of the firm was in contravention of this
clause.
(7) A person may recover from a firm of incorporated legal practices, or
of incorporated legal practices and legal practitioners, as a debt due to the
person, any amount the person paid to or at the direction of the firm for
anything the firm did while a member of the firm was in contravention of this
clause.
(8) In this clause—
relevant day means the day on which this Schedule came into
operation.
(4) Schedule 1, clause 18(1)(b)—delete "a partner of" and
substitute:
engaging in legal practice in partnership with
(5) Schedule 1, clause 32(1)(a)—after "incorporated legal practices"
insert:
or a specified class of incorporated legal practices
(6) Schedule 1, clause 32(1)(b)—after "incorporated legal practices"
insert:
, or a specified class of incorporated legal practices,
18—Amendment
of Schedule 2—Trust money and trust accounts
Schedule 2, clause 46—after "incorporated legal practices"
insert:
, or to specified classes of incorporated legal practices,
19—Amendment
of Schedule 3—Costs disclosure and adjudication
Schedule 3, clause 52—after "incorporated legal practices"
insert:
, or to specified classes of incorporated legal practices,
20—Amendment
of Schedule 4—Investigatory powers
Schedule 4, clause 10(1)—after "incorporated legal practices"
insert:
(whether engaged in legal practice on their own account or in
partnership)
After Schedule 4 insert:
Schedule 5—Transitional
provisions
1—Closure of certain
complaints
(1) A complaint
received by the Commissioner under Part 6 before the commencement of subsection
(3b) of section 77B may, if the complaint was made by a person who was, at the
time of making the complaint, subject to an order under section 39 of the
Supreme
Court Act 1935
prohibiting him or her from instituting proceedings (or proceedings of a
particular class), be closed by the Commissioner without an investigation or
without completing an investigation.
(2) If the Commissioner determines to close a complaint under
subclause (1)
—
(a) the Commissioner must notify the complainant in writing of the closure
of the complaint; and
(b) the determination is not subject to appeal.