Legal Profession Act 2007

Legal Profession Act 2007

This Act may be cited as the Legal Profession Act 2007.

The provisions of this Act commence on a day or days to be proclaimed.

The purposes of this Act are as follows:

to provide for the regulation of legal practice in this jurisdiction in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;

to facilitate the regulation of legal practice on a national basis across State and Territory borders.

In this Act – ADI means an authorised deposit-taking institution; admission rules means rules relating to the admission of local lawyers and associated matters made under Part 2.2 (Admission of local lawyers); admission to the legal profession means admission by a Supreme Court as – a lawyer; or a legal practitioner; or a barrister; or a solicitor; or a barrister and solicitor; or a solicitor and barrister – under this Act or a corresponding law, but does not include the grant of a practising certificate under this Act or a corresponding law and "admitted to the legal profession" has a corresponding meaning; affairs of a law practice includes the following:all accounts and records required under this Act or the regulations to be maintained by the practice or an associate or former associate of the practice; other records of the practice or an associate or former associate of the practice; any transaction – to which the practice or an associate or former associate of the practice was or is a party; or in which the practice or an associate or former associate of the practice has acted for a party; amend includes – in relation to a practising certificate – impose a condition on the certificate; and amend or revoke a condition already imposed on the certificate; and in relation to registration as a foreign lawyer – amend the lawyer’s registration certificate; and impose a condition on the registration; and amend or revoke a condition already imposed on the registration; approved ADI means an ADI approved under section 273 (Approval of ADIs) by the prescribed authority; approved form– see section 652 (Approved forms); associate– see section 7 (Terms relating to associates and principals of law practices);Australian lawyer– see section 5 (Terms relating to lawyers);Australian legal practitioner– see section 6 (Terms relating to legal practitioners);Australian practising certificate means a local practising certificate or an interstate practising certificate;Australian-registered foreign lawyer means a locally registered foreign lawyer or an interstate-registered foreign lawyer;Australian roll means the local roll or an interstate roll;Australian trust account means a local trust account or an interstate trust account; barrister means – a local legal practitioner who holds a current local practising certificate to practise as or in the manner of a barrister; or an interstate legal practitioner who holds a current interstate practising certificate that entitles the practitioner to engage in legal practice only as or in the manner of a barrister;Board means the Legal Profession Board of Tasmania established by section 589;Board of Legal Education means the Board of Legal Education continued under section 604; client includes a person to whom or for whom legal services are provided; community legal centre– see the definition of "complying community legal centre"; complying community legal centre– see section 218 (Community legal centres); conditions means conditions, limitations or restrictions; contravene includes fail to comply with; controlled money means money received or held by a law practice in respect of which the practice has a written direction to deposit the money in an account (other than a general trust account) over which the practice has or will have exclusive control;

controlled money account means an account maintained by a law practice with an ADI for the holding of controlled money received by the practice; conviction– see section 11 (References to convictions for offences); corresponding authority means – a person or body having functions or powers under a corresponding law; or when used in the context of a person or body having functions or powers under this Act (the "local authority") – a person or body having corresponding functions or powers under a corresponding law; and without limiting subparagraph (i), if the functions or powers of the local authority relate to local lawyers or local legal practitioners generally or are limited to any particular class of local lawyers or local legal practitioners, a person or body having corresponding functions or powers under a corresponding law regardless of whether they relate to interstate lawyers or interstate legal practitioners generally or are limited to any particular class of interstate lawyers or interstate legal practitioners; or a person or body declared by the Minister by notice published in the Gazette to be a corresponding authority; corresponding disciplinary body means – a body having functions or powers under a corresponding law that correspond to any of the functions or powers of the Board; or a court or tribunal having functions or powers under a corresponding law that correspond to any of the functions or powers of the Supreme Court or Tribunal; or the Supreme Court of another jurisdiction exercising – its inherent jurisdiction or powers in relation to the control and discipline of any Australian lawyers; or its jurisdiction or powers to make orders under a corresponding law of the other jurisdiction in relation to any Australian lawyers; or a body declared by the Minister by notice published in the Gazette to be a corresponding disciplinary body; corresponding foreign law means the following:a law of a foreign country that corresponds to the relevant provisions of this Act or, if a regulation is made declaring a law of the foreign country to be a law that corresponds to this Act, the law declared under that regulation for the foreign country; if the term is used in relation to a matter that happened before the commencement of the law of a foreign country that, under paragraph (a), is the corresponding law for the foreign country, a previous law applying to legal practice in the foreign country; corresponding fund means a fund in another jurisdiction that corresponds to the Guarantee Fund; corresponding law means the following:a law of another jurisdiction that corresponds to the relevant provisions of this Act or, if a regulation is made declaring a law of the other jurisdiction to be a law that corresponds to this Act, the law declared under that regulation for the other jurisdiction; if the term is used in relation to a matter that happened before the commencement of the law of another jurisdiction that, under paragraph (a), is the corresponding law for the other jurisdiction, a previous law applying to legal practice in the other jurisdiction; costs assessor has the meaning given in section 283;Council means the Council of the Law Society; disqualified person means any of the following persons whether the thing that has happened to the person happened before or after the commencement of this definition:a person whose name has (whether or not at his or her own request) been removed from an Australian roll and who has not subsequently been admitted or re-admitted to the legal profession under this Act or a corresponding law; a person whose Australian practising certificate has been suspended or cancelled under this Act or a corresponding law and who, because of the cancellation, is not an Australian legal practitioner, or in relation to whom that suspension has not finished; a person who has been refused a renewal of an Australian practising certificate under this Act or a corresponding law, and to whom an Australian practising certificate has not been granted at a later time; a person who is the subject of an order under this Act or a corresponding law prohibiting a law practice from employing or paying the person in connection with the relevant practice; a person who is the subject of an order under this Act or a corresponding law prohibiting an Australian legal practitioner from being a partner of the person in a business that includes the practitioner’s practice; a person who is the subject of an order under section 133 (Disqualification from managing incorporated legal practice) or section 158 (Prohibition on partnerships with certain partners who are not Australian legal practitioners) or under provisions of a corresponding law that correspond to section 133 or 158; document means any record of information, and includes – anything on which there is writing; and anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and a map, plan, drawing or photograph – and a reference in this Act to a document (as so defined) includes a reference to – any part of the document; and any copy, reproduction or duplicate of the document or of any part of the document; and any part of such a copy, reproduction or duplicate; engage in legal practice includes practise law; external territory means a territory of the Commonwealth (not being the Australian Capital Territory, the Jervis Bay Territory or the Northern Territory of Australia) for the government of which as a Territory provision is made by a Commonwealth Act; financial year means a year ending on 30 June; foreign country means – a country other than Australia; or a state, province or other part of a country other than Australia; foreign roll means an official roll of lawyers (whether admitted, practising or otherwise) kept in a foreign country, but does not include a prescribed roll or a prescribed kind of roll; functions includes duties; general trust account means an account maintained by a law practice with an approved ADI for the holding of trust money received by the practice, other than controlled money or transit money; grant of a practising certificate includes the issue of a practising certificate;GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth;Guarantee Fund means the Solicitors' Guarantee Fund continued under section 358; home jurisdiction– see section 8 (Home jurisdiction); incorporated legal practice has the same meaning as in Part 2.5 (Incorporated legal practices and multi-disciplinary partnerships); information notice– see section 10 (Information notices); insolvent under administration means – a person who is an undischarged bankrupt within the meaning of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory); or a person who has executed a deed of arrangement under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) if the terms of the deed have not been fully complied with; or a person whose creditors have accepted a composition under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) if a final payment has not been made under that composition; or a person for whom a debt agreement has been made under Part IX of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) if the debt agreement has not ended or has not been terminated; or a person who has executed a personal insolvency agreement under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) but not if the agreement has been set aside or terminated or all of the obligations that the agreement created have been discharged; interstate lawyer– see section 5 (Terms relating to lawyers); interstate legal practitioner– see section 6 (Terms relating to legal practitioners); interstate practising certificate means a current practising certificate granted under a corresponding law; interstate-registered foreign lawyer means a person who is registered as a foreign lawyer under a corresponding law; interstate roll means a roll of lawyers maintained under a corresponding law; interstate trust account means a trust account maintained under a corresponding law; jurisdiction means a State or Territory of the Commonwealth; law firm means a partnership consisting only of – Australian legal practitioners; or one or more Australian legal practitioners and one or more Australian-registered foreign lawyers;Law Foundation of Tasmania means the company limited by guarantee incorporated under that name on 1 July 1980; law practice means – an Australian legal practitioner who is a sole practitioner; or a law firm; or a multi-disciplinary partnership; or an incorporated legal practice; or a complying community legal centre;Law Society means the Law Society of Tasmania; lay associate– see section 7 (Terms relating to associates and principals of law practices); lay person means a person who is not an Australian lawyer; legal costs means amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services, including disbursements but not including interest; legal practitioner associate– see section 7 (Terms relating to associates and principals of law practices); legal practitioner director, in relation to an incorporated legal practice, has the meaning given in Part 2.5 (Incorporated legal practices and multi-disciplinary partnerships); legal practitioner partner in relation to a multi-disciplinary partnership, has the meaning given in Part 2.5 (Incorporated legal practices and multi-disciplinary partnerships); legal profession rules means rules relating to legal practice made under this Act; legal services means work done, or business transacted, in the ordinary course of legal practice; local lawyer– see section 5 (Terms relating to lawyers); local legal practitioner– see section 6 (Terms relating to legal practitioners); local practising certificate means a practising certificate granted under this Act; local roll means the roll of lawyers maintained under this Act; local trust account means a trust account maintained under this Act; locally registered foreign lawyer means a person who is registered as a foreign lawyer under this Act; managed investment scheme has the same meaning as in Chapter 5C of the Corporations Act 2001 of the Commonwealth; modifications includes modifications by way of alteration, omission, addition or substitution; mortgage means an instrument under which an interest in real property is charged, encumbered or transferred as security for the payment or repayment of money, and includes – any instrument of a kind that is prescribed by the regulations as being a mortgage; and a proposed mortgage; mortgage financing means facilitating a loan secured or intended to be secured by mortgage by – acting as an intermediary to match a prospective lender and borrower; or arranging the loan; or receiving or dealing with payments for the purposes of, or under, the loan – but does not include providing legal advice, legal services or preparing an instrument for the loan; mortgage investment scheme means – a scheme in which – more than one person contributes money to the scheme; and that money is pooled in a fund to make investments in property or other securities; and the securities arising from the money invested are controlled by a person who has the day-to-day control of the scheme, including the authority to acquire mortgage securities or other securities; or such other scheme as may be prescribed; multi-disciplinary partnership has the meaning given in Part 2.5 (Incorporated legal practices and multi-disciplinary partnerships); practical legal training means – legal training by participation in course work; or supervised legal training, whether involving articles of clerkship or otherwise – or a combination of both; principal– see section 7 (Terms relating to associates and principals of law practices); professional misconduct– see section 421 (Professional misconduct);Register means the Register of Disciplinary Action referred to in section 497; Registrar means the Registrar of the Supreme Court; regulatory authority means – in relation to this jurisdiction – a person or body having functions or powers under this Act; or a person or body prescribed by the regulations as a regulatory authority of this jurisdiction; or in relation to another jurisdiction – if there is only one regulatory authority for the other jurisdiction, that regulatory authority, unless subparagraph (iii) applies; or if there are separate regulatory authorities for the other jurisdiction for different branches of the legal profession or for persons who practise in a particular style of legal practice, the regulatory authority relevant to the branch or style concerned, unless subparagraph (iii) applies; or if the regulations specify or provide for the determination of one or more regulatory authorities for the other jurisdiction either generally or for particular purposes, the regulatory authority or authorities specified or determined in accordance with the regulations; rules includes "admission rules", "legal profession rules" and Board of Legal Education rules made under section 608; serious offence means an offence whether committed in or outside this jurisdiction that is – an indictable offence against a law of the Commonwealth or any jurisdiction (whether or not the offence is or may be dealt with summarily); or an offence against a law of another jurisdiction that would be an indictable offence against a law of this jurisdiction if committed in this jurisdiction (whether or not the offence could be dealt with summarily if committed in this jurisdiction); or an offence against a law of a foreign country that would be an indictable offence against a law of the Commonwealth or this jurisdiction if committed in this jurisdiction (whether or not the offence could be dealt with summarily if committed in this jurisdiction); show cause event, in relation to a person, means – his or her becoming bankrupt or being served with notice of a creditor's petition presented to the Court under section 43 of the Bankruptcy Act 1966 of the Commonwealth; or his or her presentation (as a debtor) of a declaration to the Official Receiver under section 54A of the Bankruptcy Act 1966 of the Commonwealth of his or her intention to present a debtor's petition or his or her presentation (as a debtor) of such a petition under section 55 of that Act; or his or her applying to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounding with his or her creditors or making an assignment of his or her remuneration for their benefit; or his or her conviction for a serious offence or a tax offence, whether or not – the offence was committed in or outside this jurisdiction; or the offence was committed while the person was engaging in legal practice as an Australian legal practitioner or was practising foreign law as an Australian-registered foreign lawyer, as the case requires; or other persons are prohibited from disclosing the identity of the offender; sole practitioner means an Australian legal practitioner who engages in legal practice on his or her own account; solicitor means – a local legal practitioner who holds a current local practising certificate to practise as a barrister and solicitor; or an interstate legal practitioner who holds a current interstate practising certificate that does not restrict the practitioner from engaging in legal practice only as or in the manner of a barrister; suitability matter– see section 9 (Suitability matters); supervised legal practice means legal practice by a person who is an Australian legal practitioner – as an employee of a law practice, where – at least one partner, legal practitioner director or other employee of the law practice is an Australian legal practitioner who holds an unrestricted practising certificate; and the person engages in legal practice under the supervision of an Australian legal practitioner referred to in subparagraph (i); or as a partner in a law firm, where – at least one other partner is an Australian legal practitioner who holds an unrestricted practising certificate; and the person engages in legal practice under the supervision of an Australian legal practitioner referred to in subparagraph (i); or in a capacity approved under a legal profession rule;Tasmania Legal Aid means the commission constituted under section 4 of the Legal Aid Commission Act 1990; tax offence means any offence under the Taxation Administration Act 1953 of the Commonwealth, whether committed in or outside this jurisdiction; this jurisdiction means this State;Tribunal means the Disciplinary Tribunal established by section 610;Trust means the Solicitors' Trust continued under section 633; trust account means an account maintained by a law practice with an approved ADI to hold trust money; trust money has the meaning given in Part 3.2 (Trust money and trust accounts); trust property means property entrusted to a law practice in the course of or in connection with the provision of legal services by the practice, but does not include trust money referred to in section 232; unrestricted practising certificate means an Australian practising certificate that is not subject to any condition under this Act or a corresponding law requiring the holder to engage in supervised legal practice or restricting the holder to practise as or in the manner of a barrister; unsatisfactory professional conduct– see section 420 (Unsatisfactory professional conduct).

Notes included in this Act do not form part of this Act.

For the purposes of this Act –

an "Australian lawyer" is a person who is admitted to the legal profession under this Act or a corresponding law; and a "local lawyer" is a person who is admitted to the legal profession under this Act (whether or not the person is also admitted under a corresponding law); and an "interstate lawyer" is a person who is admitted to the legal profession under a corresponding law, but not under this Act.

For the purposes of this Act –

an "Australian legal practitioner" is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate; and a "local legal practitioner" is an Australian lawyer who holds a current local practising certificate; and an "interstate legal practitioner" is an Australian lawyer who holds a current interstate practising certificate, but not a local practising certificate.

For the purposes of this Act, an "associate" of a law practice is – an Australian legal practitioner who is – a sole practitioner (in the case of a law practice constituted by the practitioner); or a partner in the law practice (in the case of a law firm); or a legal practitioner director in the law practice (in the case of an incorporated legal practice); or a legal practitioner partner in the law practice (in the case of a multi-disciplinary partnership); or an employee of, or consultant to, the law practice; or an agent of the law practice who is not an Australian legal practitioner; or an employee of the law practice who is not an Australian legal practitioner; or an Australian-registered foreign lawyer who is a partner in the law practice; or a person (not being an Australian legal practitioner) who is a partner in a multi-disciplinary partnership; or an Australian-registered foreign lawyer who has a relationship with the law practice, being a relationship that is of a class prescribed by the regulations.

For the purposes of this Act – a "legal practitioner associate" of a law practice is an associate of the practice who is an Australian legal practitioner; and a "lay associate" of a law practice means an associate of the practice who is not an Australian legal practitioner.

For the purposes of this Act, a "principal" of a law practice is an Australian legal practitioner who is – a sole practitioner (in the case of a law practice constituted by the practitioner); or a partner in the law practice (in the case of a law firm); or a legal practitioner director in the law practice (in the case of an incorporated legal practice); or a legal practitioner partner in the law practice (in the case of a multi-disciplinary partnership).

This section has effect for the purposes of this Act.

The "home jurisdiction" for an Australian legal practitioner is the jurisdiction in which the practitioner’s only or most recent current Australian practising certificate was granted.

The "home jurisdiction" for an Australian-registered foreign lawyer is the jurisdiction in which the lawyer’s only or most recent current registration was granted.

The "home jurisdiction" for an associate of a law practice who is neither an Australian legal practitioner nor an Australian-registered foreign lawyer is – where only one jurisdiction is the home jurisdiction for the only associate of the practice who is an Australian legal practitioner or for all the associates of the practice who are Australian legal practitioners, that jurisdiction; or where no one jurisdiction is the home jurisdiction for all the associates of the practice who are Australian legal practitioners – the jurisdiction in which the office is situated at which the associate performs most of his or her duties for the law practice; or if a jurisdiction cannot be determined under subparagraph (i), the jurisdiction in which the associate is enrolled under a law of the jurisdiction to vote at elections for the jurisdiction; or if a jurisdiction can be determined under neither subparagraph (i) nor subparagraph (ii), the jurisdiction determined in accordance with criteria specified or referred to in the regulations.

Each of the following is a "suitability matter" in relation to a natural person:whether the person is currently of good fame and character; whether the person is or has been an insolvent under administration; whether the person has been convicted of an offence in Australia or a foreign country, and, if so – the nature of the offence; and how long ago the offence was committed; and the person’s age when the offence was committed;

whether the person engaged in legal practice in Australia – when not admitted to the legal profession, or not holding a practising certificate, as required under this Act or a previous law of this jurisdiction that corresponds to this Act or under a corresponding law; or if admitted to the legal profession, in contravention of a condition on which admission was granted; or if holding an Australian practising certificate, in contravention of a condition of the certificate or while the certificate was suspended; whether the person has practised law in a foreign country – when not permitted by or under a law of that country to do so; or if permitted to do so, in contravention of a condition of the permission; whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following:this Act or a previous law of this jurisdiction that corresponds to this Act; a corresponding law or corresponding foreign law; whether the person – is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country; or has been the subject of disciplinary action, however expressed, relating to another profession or occupation that involved a finding of guilt; whether the person’s name has been removed from – a local roll, and has not since been restored to or entered on a local roll; or an interstate roll, and has not since been restored to or entered on an interstate roll; or a foreign roll; whether the person’s right to engage in legal practice has been suspended or cancelled in Australia or a foreign country; whether the person has contravened, in Australia or a foreign country, a law about trust money or trust accounts; whether, under this Act, a law of the Commonwealth or a corresponding law, a supervisor, manager or receiver, however described, is or has been appointed in relation to any legal practice engaged in by the person; whether the person is or has been subject to an order, under this Act, a law of the Commonwealth or a corresponding law, disqualifying the person from being employed by, or a partner of, an Australian legal practitioner or from managing a corporation that is an incorporated legal practice; whether the person is currently unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner.

A matter is a suitability matter even if it happened before the commencement of this section.

For the purposes of this Act, an information notice is a written notice to a person about a decision stating –

the decision; and the reasons for the decision; and the rights of appeal or review available to the person in respect of the decision and the period within which any such appeal or review must be made or applied for.

A reference in this Act to a conviction includes a finding of guilt, or the acceptance of a guilty plea, whether or not a conviction is recorded.

Without limiting subsection (1), a reference in this Act to the quashing of a conviction for an offence includes a reference to the quashing of – a finding of guilt in relation to the offence; or the acceptance of a guilty plea in relation to the offence.

However, a reference in this Act to the quashing of a conviction for an offence does not include a reference to the quashing of a conviction where – a finding of guilt in relation to the offence; or the acceptance of a guilty plea in relation to the offence – remains unaffected.