2006

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

LEGAL PROFESSION BILL 2006
SERIAL NO. 75

EXPLANATORY STATEMENT

GENERAL OUTLINE

The Bill reforms the laws relating to the regulation of the legal profession in the Northern Territory. The main objective of the Bill is to achieve national consistency with the laws that regulate the legal profession in the Australian States and Territories.

The Bill is based on a model Bill approved by the Standing Committee of Attorneys-General (SCAG) in July 2006.

What is the model Bill?

The model Bill (“MB”) is a Bill developed by SCAG as the basis for the national practice of the law within the Australian States and Territories.

The MB includes a set of core uniform ("CU") provisions that are to be enacted word for word in each of the jurisdictions Subject to local State and Territory variation such as the names of courts, regulatory bodies and underlying local principles such as the laws of criminal responsibility and the ways in which offences/penalties are structured.. These are the provisions necessary to ensure that:
·	the same rules apply to most day to day activities of persons practising law; and
·	there are common and consistent outcomes for activities that may be the subject of regulation by 2 or more States or Territories.

The Northern Territory Bill contains nearly all of the CU (“Core uniform”) provisions The main exceptions are two trust account provisions which are to be contained in Northern Territory Regulations — MB 713A(2) and MB 714A(2)..
Additionally, the Bill contains provisions ("CNU") (“Core non uniform”) for which there is agreement to enact laws adopting the principles contained in them. 

Jurisdictions have not committed to word for word re-enactment of them but have agreed to enact provisions that have the same meaning. The Northern Territory Bill contains all of these clauses and, as a general rule, adopts the wording in the model.

Finally, the model Bill contains suggested clauses ("NC") (Non core”) for most of the other standard areas covered by legal profession legislation — for example, laws relating to the processes used by Courts to admit persons to the profession. Again, for most cases, the Northern Territory Bill adopts the suggested wording.

Terminology

The model Bill introduces some new terminology for the regulation of lawyers. These key definitions include:

·	An "Australian lawyer" — is a person who is admitted in an Australian State or Territory;

·	An "Australian legal practitioner" is an Australian lawyer who holds a practising certificate in an Australian State or Territory

·	"home jurisdiction" - each "Australian legal practitioner" has a home jurisdiction being the jurisdiction from which they have been issued their current practising certificate. The model Bill contains detailed rules designed to ensure that a person can only obtain a practising certificate in the jurisdiction with which they have the closest connection;

·	"law practice" is used to identify the entity or person providing legal services (thus may refer to a barrister, a sole practitioner, a firm or a company).

NOTES ON CLAUSES

CHAPTER 1 – INTRODUCTION

PART 1.1 — PRELIMINARY MATTERS [MB PT 1]

1.	Short title [CNU] [MB s 101]

This clause provides that the name of the Act will be the Legal Profession Act 2006.

2.	Commencement [CNU] [MB s 102]

This clause, read with sections 6 and 6A of the Interpretation Act, permits the various provisions of the Act to be commenced on such day or days as are determined by the Administrator by notice published in the Northern Territory Government Gazette.

3.	Main purposes of this Act [NC] [MB s 103]

This clause sets out the broad purposes of the Act as being to promote the administration of justice, protect consumers, and regulate the legal profession in the Northern Territory and to facilitate the national practice of the law.

PART 1.2 – INTERPRETATION [MB PT 1]

4.	Definitions [NC; except CU, where defined terms are used in CU Model Provisions] [MB s 104] [MB s 110]

This section contains the definitions and signposts for other definitions.

5.	Terms relating to lawyers [CU] [MB s 105]

This clause sets out the definitions relevant to the admission of lawyers. The term "Australian lawyer" denotes a person admitted in any Australian State or Territory.

6.	Terms relating to legal practitioners [CU] [MB s 106]

This clause sets out the definitions relevant to the lawyers who have practising certificates. The term "Australian legal practitioner" denotes a person admitted in any Australian State or Territory who also has a practising certificate from any State or Territory.

7.	Terms relating to associates and principals of law practices [CU] [MB s 107]

This clause sets out the meaning of various terms, including the meanings of:

·	associate of a law practice
·	legal practitioner associate of a law practice
·	lay associate of a law practice
·	principal of a law practice

8.	Home jurisdiction [CU] [MB s 108]

This clause sets out the meanings of various terms, including the "home jurisdiction" of:

·	an Australian legal practitioner
·	an Australian registered foreign lawyer
·	an associate of a law practice

9.	Admission to legal profession

This clause sets out the meaning of "admission to the legal profession".

10.	Academic qualifications and legal training requirements [CNU] [MB s 307(2)-(4)]

This clause sets out the academic and practical legal training requirements that must be met by persons seeking to be admitted as an Australian legal practitioner in the Northern Territory. Such qualifications are to set out in 'admission rules' made under clause 43 of this Bill. The rules are made by the permanent Judges of the Supreme Court.

Regulations may be made which set out the 'relevant agreed standards' against which the Northern Territory Admissions Board may make decisions in respect of academic and practical legal training requirements that have been met in other jurisdictions.

11.	Suitability matters [CNU] [MB s 109] 

This clause sets out the suitability matters that can be taken into account by the Supreme Court or Admission Board (under clause 30 when making admission decisions) and the Law Society (under clause 47) when making practising certificate decisions).

12.	Corresponding authorities 

This clause sets out that persons or bodies having powers under a corresponding law are to be corresponding authorities for the purposes of this Act.

13.	Corresponding disciplinary bodies 

This clause sets out that disciplinary bodies having powers under a corresponding law are to be corresponding disciplinary bodies for the purposes of this Act.

14.	Corresponding laws and corresponding foreign laws

This clause provides that laws of other jurisdictions can be corresponding laws for the purposes of this Act.

15.	References to convictions for offences [CNU] [MB s 111] 

This clause defines the meaning of the references in the Act to "convictions".

16.	Declared offences for Criminal Code

This clause provides that the offences are prescribed for the purposes of Part IIAA of the Criminal Code. This means that the principles of criminal responsibility set out in Part IIAA, rather than those in Part II of the Code, apply to breaches of the Act.

CHAPTER 2 — GENERAL REQUIREMENTS FOR ENGAGING IN LEGAL PRACTICE 

PART 2.1 - RESERVATION OF LEGAL WORK AND LEGAL TITLES [MB PT 2]

17.	Purposes of Part [NC] [MB s 201] 

This clause sets out the purposes of Part 2.1. The purpose is to ensure that "legal work" is only carried out by those persons who have the appropriate qualifications. The term "legal work" is not defined.

18.	Prohibition on engaging in legal practice when not entitled [CU except NC(2)(b) (unless Part 2.7 adopted) (2)(d) – (h)] [MB s 202]

This clause prohibits a person from engaging in "legal practice" for "fee, gain or reward" unless the person is an Australian legal practitioner (i.e. a person who is admitted and who has a practising certificate). The term "legal practice" is not defined).

However, this prohibition does not apply to legal practice:

·	engaged in under the authority of a Commonwealth Act (eg under the Judiciary Act 1904);

·	for various other types of legal practitioners regulated by other parts of the Act (eg incorporated legal practices (which are not required to hold practising certificates (clause 121), the practice of foreign law, conveyancing agents, certain work of the Public Trustee, the work of Complying Community Legal Centres. The Regulations may also provide for special provisions concerning foreign lawyers, conveyancing agents and the Public Trustee).

19.	Prohibition on representing or advertising entitlement to engage in legal practice when not entitled [CU] [MB s 203]

This clause prohibits a person representing or advertising that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner.

This prohibition applies whether or not the representation or advertising involves any payment or reward for the services.

There is a similar prohibition concerning body corporates that are not incorporated legal practices.

20.	Presumptions about taking or using name, title or description [NC] [MB s 204]

This clause sets out certain names that, if used by a person or body corporate, give rise to a rebuttable presumption that the person or body corporate is representing that, for the purposes of clause 19, they are entitled to engage in legal practice.

21.	Appointment of Queen's Counsel or Senior Counsel [NT, s.20]

Under section 20 of the current Legal Practitioners Act, there is a process for giving recognition to eminent lawyers, known as Queen's Counsel. Under section 20 they are appointed by the Administrator acting on the advice of the Executive Council. The process for appointment is underpinned by a protocol between the Supreme Court Judges, the profession and the Attorney-General.

Under this protocol the Chief Justice consults with the profession, the judiciary and the Attorney-General before making a recommendation for consideration by the Administrator. Under the protocol the Administrator is expected to act on the advice of the Chief Justice.

New clause 21 codifies the accepted practices agreed for the purposes of section 20 excepting for:

·	the removal of Executive Government from the formal appointment process;

·	making it clear that the name for eminent lawyers is a matter for the judgment of the person making the appointment - that is, they can have either the traditional title of "Queen's Counsel" or the title used in most other Australian jurisdictions, namely that of "Senior Counsel".

22.	Schemes for specialist lawyers

This clause provides that clause 20 is not to be taken as preventing the Law Society from establishing a merit system for recognising and entitling specialist lawyers.

23.	Contravention of Part by Australian lawyers who are not legal practitioners [CU] [MB s 205]

This clause sets out that an Australian lawyer (i.e. a person who has been admitted but does not have a practising certificate) who contravenes Part 2.1 may be guilty of unsatisfactory professional conduct (Chapter 4) or professional misconduct (Chapter 4).

A person who contravenes Part 2.1 is liable to both disciplinary action (under Chapter 4) and to criminal proceedings.

PART 2.2 — ADMISSION OF LOCAL LAWYERS [MB PT 3]

Division 1 — Preliminary matters

24.	Purposes of Part [NC] [MB s 301]

This clause states that the purposes of this Part are to ensure that only suitably qualified persons are admitted in the Northern Territory and for the recognition of qualifications obtained inside and out of the Northern Territory.

Division 2 — Admission to legal profession

25.	Admission [CNU] [MB s 303]

This clause provides that a person may apply to the Supreme Court to be admitted as a local lawyer. The Court must consider the recommendation of the Admission Board (clause 35) and must be satisfied that the person is eligible for admission (clause 29) and that the person is a fit and proper person to be admitted to the legal profession (clause 30).

26.	Conditions of admission [MB s 304] 

The Supreme Court can impose conditions on admission, or vary or remove conditions imposed. A person can be removed from the roll for contravening a condition imposed by the court.

27.	Roll of persons admitted to legal profession [NC] [MB s 305]

This clause provides that the Court/Registrar must maintain a roll of persons admitted in the Northern Territory. Details concerning each admission (occurring after the commencement of this Act) must be provided to the Law Society.

Regulations will deal with the information that must be on the local roll and with the extent to which that information may be published.

28.	Local lawyer is officer of Supreme Court [CNU] [MB s 306]

This clause provides that a local lawyer is an officer of the Court for so long as his or her name is on the local roll.

Division 3 — Eligibility and suitability for admission

29.	Eligibility for admission [CNU] [MB s 307] 

This clause sets out the basis on which a person is eligible for admission.

This clause also provides that the Admission Board may recommend to the court that a person be admitted even if the requirements concerning academic qualifications and practical legal training have not been met. This can only be on the basis that the Board considers the person to have sufficient qualifications or experience.

30.	Suitability for admission [CNU (1); NC (2)] [MB s 308]

This clause provides that, for the purposes of clause 25 the Admissions Board and the Supreme Court must consider each of the suitability matters referred to in clause 12 as well as any other relevant matters.

31.	Early consideration of suitability [NC] [MB s 309]

This clause provides that a person may seek a declaration from the Admission Board that a suitability matter disclosed will not adversely affect the Board's assessment. The Law Society must be informed of the Board's decision.

32.	Referral of matters to Supreme Court [NC] [MB s 309]

The Admission Board may refer questions about whether an applicant is a "fit and proper" person and also early suitability declarations to the Supreme Court.

33.	Binding effect of declaration or order [NC] [MB s 309]

Orders or declarations made under clauses 31 or 32 are binding on the Admission Board.

34.	Entitlement to be represented, heard and make representations [NSW s 30]

The Law Society and the applicant are entitled to make written submissions on matters being considered by the Admission Board under this Division.

The Admission Board must notify the Law Society concerning applications for suitability declarations, the outcomes of such declarations and applications for admission.

Division 4 — Powers and functions of Admission Board

35.	Admission Board to advise on application for admission [NC] [MB s 310]

It is the role of the Admission Board to advise the Supreme Court as to whether an applicant is eligible for admission, is a fit and proper person and if the application conforms to the admission rules.

36.	Compliance certificates [NC] [MB s 311]

The Admission Board must issue a "compliance certificate" if satisfied that an applicant is eligible for admission, is a fit and proper person and if the application conforms to the admission rules.

If the Admission Board is not satisfied of those matters it must issue an information notice about the refusal to be satisfied. If the Board does not issue a compliance certificate or give an information notice within the time set by the Regulations, the Board will be deemed to have refused to have been satisfied and will be deemed to have issued an information notice to that effect.

37.	Consideration of applicant's eligibility and suitability [NC] [MB s 312]

In considering an application, the Admission Board may require the production of documents or information from the applicant.

Division 5— Appeals

38.	Appeals [NC] [MB s 309]

An applicant may appeal against a refusal of the Admission Board to issue a compliance certificate or to make a suitability declaration. The Law Society may also appeal against decisions about compliance certificates and suitability declarations.

Division 6 —Miscellaneous matters

39.	Mutual recognition local registration authority [NT s.12]

For the purposes of the Mutual Recognition Act, the Admission Board is the local registration authority. This means persons applying for admission in reliance of that Act need to make an application to the Admission Board.

40.	Certificate of admission [Tas s.37]

The Registrar of the Supreme Court must issue an admission certificate to a person who is admitted under this Part.

41.	Admission Board not respondent to application [NC] [MB s 314]

The Admission Board is not a respondent to applications to the Court under this Part but is obliged to provide copies of all documents to the Court and to the parties.

42.	Costs of application 

If the Court appoints counsel to act in a “counsel assisting role” the costs of such Counsel shall be met by the Fidelity Fund.  The costs must be certified by the Solicitor for the Northern Territory.

This clause also sets out the entitlement of the Law Society to payment of its costs when it acts as contradictor or as a party in an admissions proceeding before the Court.  Again, the costs must be certified by the Solicitor for the Northern Territory.  The Court must not make an order for costs in favour of the Law Society if it is satisfied that the Society has acted unreasonably in relation to the matter.

43.	Admission rules [NC] [MB s 315] 

The Judges of the Supreme Court may make admission rules governing the admission processes, qualifications for admission (practical and academic) and exemptions. However, the rules cannot require practical training that is longer than one year.

PART 2.3— LEGAL PRACTICE BY AUSTRALIAN LEGAL PRACTITIONERS [MB PT 4]

Division 1— Preliminary matters

44.	Purposes of Part [NC] [MB s 401]

This clause sets out that the purpose of Part 2.3 is to provide for the granting of local practising certificates to Australian lawyers regardless of whether they are admitted in the Northern Territory and to facilitate the practice of law in the Northern Territory by any Australian legal practitioner.

Division 2— Legal practice in this jurisdiction by Australian legal practitioners

45.	Entitlement of holder of Australian practising certificate to practise in this jurisdiction [CU] [MB s 402]

This clause states the general proposition that all Australian legal practitioners (i.e. Australian lawyers with a practising certificate issued by one State or Territory) are entitled practise law in the Northern Territory.

Division 3— Local practising certificates generally

46.	Local practising certificates [CNU (1); NC (2) CU (3)] [MB s 403]

This clause states the general proposition that practising certificates are granted under this Part, with categories being determined by the Regulations and with all certificates being subject to the condition that the holder must not have another local practising certificate or have an interstate practising certificate.

47.	Suitability to hold local practising certificate [CNU] [MB s 404]

This clause sets out the matters to be taken into account in determining whether a person is suitable to hold a practising certificate.

These matters include the suitability matters described in clause 12 and other matters such as whether there has been any misleading information provided, contraventions of conditions, breach of orders of a Disciplinary Tribunal, failure to pay a levy, failure to comply with insurance requirements, or failure to comply with trust money provisions.

48.	Duration of local practising certificate [CU (1) & (2); NC (3)] [MB s 405]

Practising certificates operate from the date of grant until the end of the financial year of grant (i.e. the following 30 June). This is a change from the current situation in the Northern Territory. See clause 715 for transitional arrangements.

49.	Local legal practitioner is officer of Supreme Court [CU] [MB s 407]

A person (not being a local lawyer admitted in the Northern Territory) is an officer of the Supreme Court for so long as he or she holds a Northern Territory practising certificate.  See also clause 83 regarding interstate legal practitioners.

Division 4 — Grant or renewal of local practising certificates

50.	Who may apply for grant or renewal of local practising certificate [CU (1) – (6); NC (7) and (8)] [MB s 408]

An Australian lawyer may apply to the Law Society for the grant or renewal of a practising certificate.

The applicant must comply with any applicable Regulations and rules. Various rules about eligibility of persons who practice in the Northern Territory are set out.

51.	Making application and fees [NC] [MB s 409]

Applications for practising certificates must comply with the requirements set out in the Regulations. The fees paid to the Law Society are to be paid to the Funds Management Committee.

52.	Timing of application for renewal of local practising certificate [NC] [MB s 410]

An application for renewal must be made within the period prescribed by Regulation being a period within the currency of the practising certificate being renewed.

An application for renewal can, under some circumstances, be accepted by the Law Society up to 6 months late.

53.	Late fee [Tas s.51] 

The Law Society may impose a fee for late applications.

54.	Grant or renewal of local practising certificate [NC] [MB s 411]

This clause sets out what the Law Society may do in considering an application for the grant or renewal of a practising certificate.

If the Law Society refuses to grant or renew a practising certificate the Law Society must issue an information notice.

Division 5— Amendment, suspension or cancellation of local practising certificates

55.	Application of Division [NC] [MB s 412]

This Division sets out the grounds, and procedures to be followed, if the Law Society believes a practicing certificate should be amended, suspended or cancelled.

This Division does not apply in relation to matters referred to in Division 6. Under Division 6, the onus is on the applicant for renewal of a practising certificate to declare certain matters that may have occurred (eg bankruptcy, conviction for serious offence or tax offence) and "show cause" why the certificate should be renewed.

56.	Grounds for amending, suspending or cancelling local practising certificate [NC] [MB s 413]

This clause sets out the grounds for amending, suspending or cancelling a local practising certificate.

57.	Amending, suspending or cancelling local practising certificate [NC] [MB s 414]

If the Law Society considers that a ground (of the kind referred to in the previous clause) exists for amending, cancelling or suspending a practising certificate, it must issue a notice to the holder. This notice must, amongst other matters, specify the kind of action that the Society might take in respect of the practising certificate and give the holder the opportunity to respond. After considering the response the Law Society may cancel, suspend or amend the practising certificate and in doing so must give the holder an information notice. See clause 58 for the date of effect.

58.	Operation of amendment, suspension or cancellation of local practising certificate [NC] [MB s 415]

This clause sets out the date of effect of amendment, suspension or cancellation of a practising certificate under clause 57.

59.	

Other ways of amending or cancelling local practising certificate [NC] [MB s 416]

The Law Society may amend a practising certificate in accordance with a request of the holder. Additionally, the Society must cancel a local practising certificate if the holder's name has been removed from the Northern Territory roll or if the holder ceases to be an Australian lawyer.

If a person's name is removed from another roll but the person is still an Australian lawyer because their name is still on some other roll, including the Northern Territory roll, action would be taken under clause 57.

60.	Relationship of this Division with Chapter 4 [NC] [MB s 417]

This clause provides that a complaint can be actioned under Chapter 4 even if it relates to a matter on which action has been taken under this Division.

Division 6 — Special powers in relation to local practising certificates — show cause events

61.	Applicant for local practising certificate — show cause event [CNU] [MB s 418]

"Show cause event" is a defined term.

An applicant for a practising certificate who is subject to a show cause event must provide, as part of the application process, an explanation as to why, despite the show cause event, he or she is a fit and proper person to hold a practising certificate. However, this explanation only has to be provided once.

62.	Holder of local practising certificate — show cause event [CNU] [MB s419]

This clause provides that if the holder of a local practising certificate is the subject of a show cause event the holder must provide the Law Society with notice of the event and with reasons why he or she is a fit and proper person to hold a practising certificate.

63.	

Refusal, amendment, suspension or cancellation of local practising certificate — failure to show cause [CNU] [MB s 420]

This clause sets out that the Law Society may refuse to grant or renew a practising certificate or may amend, cancel or suspend a practising certificate if a person has failed to provide information about a show cause event or has failed to adequately respond about a show cause event.

64.	Restriction on making further applications [NC] [MB s 421]

If a person's application for grant or renewal of a practising certificate or whose practising certificate has been cancelled under clause 62 the Law Society may decide that the person may not apply for the grant of another local practising certificate for a period of up to 5 years.

65.	Relationship of this Division with Part 4.6 and Chapter 6 [NC] [MB s 422]

This clause provides that the general provisions relating to investigations and investigatory powers apply to the Law Society's actions under this Division.

Division 7 — Further provisions relating to local practising certificates

66.	Immediate suspension of local practising certificate [NC] [MB s 423]

This clause permits the Law Society to immediately suspend a lawyer's practising certificate without first complying with Divisions 5 and 6 if such an action is considered necessary in the public interest. In making such a suspension the Society must give an information notice. A right of appeal is contained in clause 89.

67.	Surrender and cancellation of local practising certificate [NC] [MB s 424]

This clause provides that the holder of a local practising certificate may surrender the certificate and that the Law Society may then cancel the certificate.

68.	

Return of local practising certificate [NC] [MB s 425] 

If a practising certificate is amended, suspended, cancelled or replaced the Law Society may require that the certificate be returned to the Society. Failure to comply with such a requirement is an offence punishable by a maximum penalty of 20 penalty units ($2200).

Division 8 — Conditions on local practising certificates

69.	Conditions generally [NC] [MB s 426]

Local practising certificates are subject to various kinds of conditions - namely those imposed by the Law Society (clause 70), statutory conditions (clause 73,), conditions imposed by the Regulations or rules, conditions imposed by the Disciplinary Tribunal (clause 70), or conditions imposed under Part 4.1.

70.	Conditions imposed by Law Society [NC] [MB s 427]

This clause provides that the Law Society may impose conditions on local practising certificates. Such conditions can be imposed at any time but must be reasonable and relevant. The conditions may be revoked or varied at any time. However, before imposing a condition during the currency of a practising certificate the Society must comply with clause 57 - that is, follow a show cause procedure

71.	Imposition or variation of conditions pending criminal proceedings [NC] [MB s 428]

This clause provides that the Law Society may apply to the Disciplinary Tribunal for an order that conditions be varied or imposed pending the outcome of criminal proceedings in respect of charges for serious offences (as defined in clause 5) or an offence that would have been disclosed at the time of admission.

72.	Statutory condition regarding conditions imposed on interstate admission [CNU] [MB s 429]

It is a statutory condition of a local practising certificate that the person complies with a condition imposed by an admissions body of another jurisdiction.

73.	Statutory condition regarding practice — general [CNU] [MB s 430]

This clause provides that a person must complete a period of supervised legal practice. The period is 18 months in the case of a person who has completed articles or a period as a graduate clerk or some other graduate training and 2 years in the case of a person who has completed other practical legal training. The Law Society has the power to grant exemptions in respect of the requirements for supervised legal training.

Employment as a lawyer in a government law office or in a complying Community Legal Centre counts for the purpose of this clause.

74.	Statutory condition regarding practice as barrister [NC] [MB s 441A]

The Regulations or the rules may prohibit a person who is practising as barrister (i.e. not as a solicitor and barrister) from practising other than as a sole practitioner, or from holding office as a legal practitioner director of an incorporated legal practice.

75.	Additional conditions on practising certificates of barristers [NSW s 56]

This clause provides that the Law Society may, in addition to any conditions imposed under clause 70, impose conditions on barristers regarding reading programs.

76.	Statutory condition regarding notification of offence [NC] [MB s 431]

It is a statutory condition that the holder of a local practising certificate must notify the Law Society of certain convictions or when charged with a serious offence.

77.	Conditions imposed by legal profession rules [NC] [MB s 432]

The legal profession rules may impose statutory conditions on practising certificates or classes of practising certificates.

78.	Compliance with conditions [NC] [MB s 433]

It is an offence to breach a condition of a practising certificate. The maximum penalty is 500 penalty units ($55,000). A contravention may also constitute unsatisfactory professional conduct or professional misconduct.

Division 9 — Interstate legal practitioners

79.	Requirement for interstate practising certificate and professional indemnity insurance [CNU] [MB s 434]

An interstate legal practitioner is not entitled to engage in legal practice in the Northern Territory or advertise as to such practice unless he or she has professional indemnity insurance covering practice in the Northern Territory and which complies with the Northern Territory Regulations. The Northern Territory Regulations cannot impose higher levels of insurance than those imposed in respect of local practitioners.

80.	Extent of entitlement of interstate legal practitioner to practise in this jurisdiction [CU] [MB s 435]

An interstate legal practitioner cannot practice in the Northern Territory to a greater extent that he or she would be entitled to practice under a local practising certificate. Conditions imposed in the practitioner's home jurisdiction also apply to practice in the Northern Territory. If there are local and home jurisdiction conditions that are inconsistent, the conditions that prevail are those that, in the opinion of the Law Society, are the more onerous. Additionally, conditions imposed under clause 81 also apply.

81.	Additional conditions on practice of interstate legal practitioners [CU] [MB s 436]

The Law Society may impose additional conditions on interstate legal practitioners. Such conditions must be notified to the interstate legal practitioner along with an information notice.

82.	Special provisions about interstate legal practitioner engaging in unsupervised legal practice in this jurisdiction [CNU] [MB s 437]

A newly admitted interstate legal practitioner must not engage in legal practice in the Northern Territory unless he or she has first completed required periods of supervised practice (or has been exempted in his or her home jurisdiction).

83.	Interstate legal practitioner is officer of Supreme Court [CU] [MB s 438]

Interstate legal practitioners have the duties and obligations of officers of the Supreme Court when they are engaged in legal practice in the Northern Territory.

84.	Mutual recognition registration authority [NT]

For the purposes of the Mutual Recognition Act, the Law Society is the local registration authority for practising certificates. This means persons applying for a practising certificate in reliance of that Act make application to the Law Society.

Division 10 — Miscellaneous matters

85.	Jurisdiction protocols [NC] [MB s 439]

The Law Society may enter into jurisdiction protocols for determining issues relating to the home jurisdiction of legal practitioners. Such protocols have no effect unless embodied in or identified in Regulations made under this Act.

86.	Consideration and investigation of applicants or holders [NC] [MB s 440]

The Law Society may require applicants for practising certificates or holders of practising certificates to provide documents and information and to cooperate with inquiries. Failure to cooperate is a ground for an adverse finding.

87.	Register of local practising certificates [NC] [MB s 441]

The Law Society has an obligation to maintain a register of persons to whom it has granted local practising certificates. The Regulations must specify what is required to be in the register. The Register must contain the conditions except where those conditions relate to an infirmity, injury or mental or physical injury not affecting the right to engage in legal practice. However, the legal practitioner may consent to such information being included on the register.

88.	Orders about conditions [NC] [MB s 442] [NSW 107]

The Statutory Supervisor or the Law Society may apply to the Supreme Court for an order that a legal practitioner not contravene a condition imposed under this Part (see also clause 700, injunctions).

89.	Appeals [NC] [MB s 443]

Some decisions of the Law Society may be subject to an appeal to the Supreme Court. The appeals are appeals on the merits.

Unless the Court decides otherwise the lodging of the appeal does not stay the effect of the decision of the Society.

90.	Government lawyers — general exemption from certain conditions [NSW 111]

The Law Society cannot impose conditions on Government lawyers (other than those relating to continuing legal education). Certain office holders (eg Director of Public Prosecutions, Solicitor-General) are not subject to conditions about continuing legal education. Government lawyers are not subject to contributions or levies to the Fidelity Fund.

91.	Government lawyers of other jurisdictions [CNU] [MB s 444] [ACT S.83, NSW 114]

Government lawyers from other jurisdictions are exempt from certain provisions of this Act if they are exempt from such provisions in their home jurisdiction.

Contributions and levies to the Fidelity Fund are not payable. 

PART 2.4 — SUITABILITY REPORTS [MB PT 5]

Division 1— Preliminary matters

92.	Main purpose of Part [Qld s 530]

The main purpose of Part 2.4 is to ensure that the regulatory authorities have access to appropriate police and health information.

These provisions are not based on provisions of the Model Bill. However, similar provisions are contained in legislation in other jurisdictions - including the Queensland Legal Profession Act 2004 and the Northern Territory Health Practitioners Act.

93.	Definitions [Qld s 531]

This clause contains various definitions of terms used in this Part.

Division 2 — Police reports

94.	Relevant authority may ask for police report [QId s 532]

Relevant authorities (i.e. the Admission Board or the Law Society) may obtain police reports. Such reports must contain details of criminal activity despite the fact that the Criminal Records (Spent Convictions) Act might otherwise prevent the release of such information.

Division 3 — Health assessments

95.	Health assessment [Qld s 533]

This clause provides a process by which relevant authorities may obtain health assessments.

96.	Appointment of health assessor [QId s 534]

This clause provides that the relevant authority may appoint a health assessor. In specified circumstances the health assessor may be provided with a copy of the criminal record provided by the Commissioner of Police.

97.	Health assessment report [Qld s 535]

This clause provides for the contents of health assessment reports. The person who has prepared such a report must provide a copy to both the relevant authority and the person who is the subject of the report.

98.	Payment for health assessment and report [QId s 536]

It is the responsibility of the relevant authority to pay for health assessment reports.

99.	Use of health assessment report [Qld s 537]

This clause provides that, as a general rule, a health suitability report cannot be used in any legal proceedings except those relating to admissions and practising certificates.

Division 4 — General matters

100.	Operation of this Part [Qld s 539]

This clause provides that the Law Society cannot obtain a suitability report in respect of an admission and that the Admission Board cannot obtain a suitability report about a practising certificate issue.

PART 2.5 — INTER-JURISDICTIONAL PROVISIONS REGARDING ADMISSION AND PRACTISING CERTIFICATES [MB PT 6]

Division 1— Preliminary matters

101.	Purpose [NC] [MB s 601]

This clause provides for notifications to and from other jurisdictions regarding admission and rights to practice.

102.	Definition [NC] [MB s 602]

This clause contains a definition of "foreign regulatory action" as used in this Part.

103.	Other requirements not affected [NC] [MB s 603]

This Part does not affect Chapter 4 (which deals with complaints and discipline).

Division 2— Notices to be given by local authorities to interstate authorities

104.	Official notice to other jurisdictions of applications for admission and associated matters [NC] [MB s 604]

The Admission Board may provide other admissions' authorities with information about admissions' applications and with various refusals and withdrawals of such applications.

105.	Official notice to other jurisdictions of removals from local roll [CNU] [MB s 605]

The Registrar must give various notifications if a person's name is removed from the local roll.

106.	Law Society to notify other jurisdictions of certain matters [NC] [MB s 606]

The Law Society must give notice to corresponding authorities about refusals to issue practising certificates or about suspensions or cancellations. The Society may also give to other authorities information about conditions that are imposed.

Division 3 — Notices to be given by lawyers to local authorities

107.	Lawyer to give notice of removal in another jurisdiction [CNU] [MB s 607]

A local lawyer must give the Registrar notice of any foreign regulatory action in respect of the lawyer.

A local legal practitioner must give the Law Society notice of any foreign regulatory action in respect of the legal practitioner.

The maximum penalty for breach is 500 penalty units ($55,000).

108.	Lawyer to give notice of interstate orders [NC] [NSW s 123, MB s 607A] 

A local lawyer must notify the Registrar if an order is made under a corresponding law that the name of the local lawyer be removed from the local roll.

A local legal practitioner must notify the Law Society if an order is made under a corresponding law that the practitioners practising certificate be cancelled, or suspended or not renewed or be subjected to conditions.

The maximum penalty for breach is 500 penalty units ($55,000).

109.	Lawyer to give notice of foreign regulatory action [CNU] [MB s 608] [NSW s 124]

A local lawyer must notify the Registrar and the Law Society if foreign regulatory action is taken.

The maximum penalty for breach is 500 penalty units ($55,000).

110.	Provisions relating to requirement to give notice [CNU] [MB s 609]

This clause sets out the information that must be provided when a provision of this Division requires information to be provided.

Division 4— Taking of action by local authorities in response to notices received

111.	Peremptory removal of local lawyer's name from local roll following removal in another jurisdiction [CNU] [MB s 610]

The Registrar must remove a person's name from the roll if a local lawyer's name has been removed from another roll and if the Supreme Court has not, under clause 115, ordered that the removal not occur.

112.	Peremptory cancellation of local practising certificate following removal of name from interstate roll [NC] [MB s 611]

The Law Society must cancel a person's practising certificate if a local lawyer's name has been removed from another roll and if the Supreme Court has not, under clause 115, ordered that the removal not occur.

113.	Show cause procedure for removal of lawyer's name from local roll following foreign regulatory action [CNU] [MB s 613] [NSW 128]

If foreign regulatory action is taken in respect of a local lawyer, the Law Society may seek an order of the Supreme Court that the lawyer's name be removed from the roll unless the lawyer shows cause to the Society that the name not be removed.

114.	Show cause procedure for cancellation of local practising certificate following foreign regulatory action [CNU] [MB s611B[ [NSW s 129]

If foreign regulatory action is taken in respect of a local legal practitioner, the Law Society may require the practitioner to show cause why the practising certificate should not be cancelled. The Law Society may cancel the practising certificate. The practitioner may appeal to the Supreme Court.

115.	Order for non-removal of name or non-cancellation of local practising certificate [CNU] [MB s 612] [NSW s 130]

The Supreme Court may, on application, make an order that cancellation or removal of name not occur in accordance with the provisions of this Division.

116.	Local authority may give information to other local authorities [CNU] [MB s 613]

Northern Territory regulatory authorities may share information provided by interstate regulatory bodies.

PART 2.6 — INCORPORATED LEGAL PRACTICES AND MULTI­DISCIPLINARY PARTNERSHIPS [MB PT 13]

Division 1— Preliminary matters

117.	Purposes of Part [NC] [MB s 1301, s 35AB]

This clause provides that the purposes of Part 2.6 are to regulate legal services provided by corporations and legal services provided in conjunction with other non legal services.

118.	Definitions [CU] [MB s 1302, s 35AC]

This clause contains definitions of:

·	corporation
·	director
·	legal practitioner director
·	legal practitioner partner
·	officer
·	professional obligations
·	Regulator
·	related body corporate.

Division 2 — Incorporated legal practices

119.	Nature of incorporated legal practice [CU; except NC (2)(a)] [MB s 1303, s 35AD]

This clause defines an incorporated legal practice as being a corporation that provides legal services. However, a corporation is not an incorporated legal practice if the services are not provided for gain or if the services are in house legal services or if the corporation is a Complying Community Legal Centre.

120.	Non-legal services and businesses of incorporated legal practices [CU] [MB s 1304, s 35AE]

This clause provides that an incorporated legal practice may provide any other services except conduct a managed investment scheme or such other services as may be specified in the Regulations.

121.	Corporations eligible to be incorporated legal practice [CU] [MB s 1305, s 35AF]

This clause provides that any corporation is entitled to be an incorporated legal practice except if prohibited by legislation. Incorporated legal practices are not required to hold practising certificates in their own name (ie the requirements for practising certificates rest with the lawyer directors and the lawyer employees).

122.	Notice of intention to start providing legal services [CU; except NC (5) - (7)] [MB s 1306, s 35AG]

This clause provides that an incorporated legal practice must, before providing legal services in the Northern Territory, notify the Law Society. The maximum penalty for breach is 500 penalty units ($55,000).

123.	Prohibition on representations that corporation is incorporated legal practice [NC] [MB s 1307]

This clause provides that an incorporated legal practice must not represent or advertise that is an incorporated legal practice unless a notice has been given under clause 122. The maximum penalty for breach is 2500 penalty units ($275,000). Directors of such offenders are also guilty of an offence. The maximum penalty for such a breach is 500 penalty units ($55,000).

124.	Notice of ceasing provision of legal services [CU] [MB s 1308, s 35AH]

This clause provides that it is an offence for an incorporated legal practice to fail to notify the Law Society when it ceases to provide legal services. The maximum penalty for breach is 500 penalty units ($55,000).

125.	Incorporated legal practice must have legal practitioner director [CU] [MB s 1309, s 35AI]

This clause provides that each incorporated legal practice must have a "legal practitioner director". This director is responsible for the management of the legal services provided in the Northern Territory by the incorporated legal practice. There is a duty on the director to (a) ensure that management systems are in place, (b) to ensure that breaches of the Act do not occur, (c) ensure that breaches of the rules do not occur and that, if the such breaches to occur to ensure that appropriate remedial action is taken.

126.	Obligations of legal practitioner director relating to misconduct [CU] [MB s 1310, s 35AJ]

This clause sets out that the legal practitioner director may be guilty of unprofessional conduct or professional misconduct if an employed is guilty of such conduct. Similarly, in respect of actions of non lawyer directors.

However, the legal practitioner director is not guilty if he or she took all reasonable steps to ensure that the person concerned did not engage in the breach.

127.	Incorporated legal practice without legal practitioner director [CU] [MB s 1311, s 35AK]

This clause provides that an incorporated legal practice commits an offence if it does not have a legal practitioner director and fails to give notice to the Law Society. The maximum penalty for breach is 20 penalty units ($2,200).

There is also an offence if an incorporated legal practice does not have a legal practitioner director for a period longer than 7 days.

128.	Obligations and privileges of practitioners who are officers or employees [CU] [MB s 1312, s 35AM]

This clause provides that employees of incorporated legal practices are subject to ordinary principles concerning professional obligations and professional privileges. .

129.	Conflicts of interest [CU] [MB s 1314, s 35AN] 

This clause defines the interests of incorporated legal practice as being the interests of individual directors and employees when dealing with conflict of interest situations.

130.	Disclosure obligations [CU] [MB s 1315, s 35AO] 

This clause provides what a legal practitioner must disclose (in accordance with Regulations) when a client engages the incorporated legal practice to provide services that the client might assume to be legal services.  In essence the disclosure has to set out the extent to which such services will be provides by an Australian legal practitioner.

This clause deals with the situation where the advice sought could be given be either a lawyer or some other professional - eg tax or town planning advice.

See next clause for standard of care if disclosure is not made.

131.	Effect of non-disclosure of provision of certain services [CU] [MB s 1316, s 35AP]

If disclosure is not provided as required by clause 130, the standard of care owed by the incorporated legal practice is the standard that would apply of an Australian legal practitioner had provided the service.

132.	Application of legal profession rules [CU] [MB s 1317]

The legal profession rules (as made under Chapter 8) apply to legal practitioners who are officers or employees of incorporated legal practices.

133.	Requirements relating to advertising [CU] [MB s 1318, s 35AQ]

This clause provides that restrictions on advertising (eg as applying under Part 3.2) apply to incorporated legal practices.

134.	Extension of vicarious liability relating to failure to account, pay or deliver and dishonesty to incorporated legal practices [CU] [MB s 1319]

This clause provides that an incorporated legal practice is vicariously liable for the acts and omissions of its employees and officers as if the incorporated legal practice is a partnership.

135.	Sharing of receipts, revenue or other income [CU] [MB s 1320]

This clause makes it clear that a legal practitioner can share with an incorporated legal practice receipts, revenue and income. The exceptions are provided for in clause 136 (services provided by disqualified persons).   It also operates subject to clause 74 – which permits conditions to be imposed on to barristers.  Such conditions are expected to preclude barristers sharing income with others.

136.	Disqualified persons [CU] [MB s 1321] [35X]

It is an offence for an incorporated legal practice if a disqualified person (as defined in clause 4) is an officer or employee of the incorporated legal practice, is a partner, is the subject of a sharing agreement regarding revenue or is paid in connection with the provision of legal services.

137.	Audit of incorporated legal practice [CU] [MB s 1322, s 35AX]

This clause provides that the Law Society may conduct an audit of compliance with Part 2.6 or any part of the Regulations or Rules that apply to incorporated legal practices.

138.	Application of Chapter 6 [NC] [MB s 1323]

This clause provides that audits under clause 137 are subject to the general provisions in Chapter 6 regarding investigations.

139.	Banning of incorporated legal practices [CU] [MB s 1324, s 35AZD]

The Supreme Court may, on the application of the Law Society, disqualify a corporation from providing legal services.

140.	Disqualification from managing incorporated legal practice [CU] [MB s 1325, s 35AZE]

The Supreme Court may, on the application of the Law Society, disqualify a person from managing a corporation that is providing legal services.

141.	Disclosure of information to ASIC [CU] [MB s 1326]

This clause provides that the Law Society may provide information to the Australian Securities and Investment Commission.

142.	External administration proceedings under Corporations Act (Cth) [CU] [MB s 1327]

This clause provides that the Law Society may intervene in proceedings involving an incorporated legal practice under Chapter 5 of the Corporations Act 2001.

143.	External administration proceedings under other legislation [CU] [MB s 1328, s 35AZI]

This clause provides that the Law Society may intervene in other proceedings concerning incorporated legal practices.

144.	Incorporated legal practice subject to receivership under this Act and external administration under Corporations Act (Cth) [CU] [MB s 1329, s 35AZJ]

This clause sets out how to resolve issues that arise if an incorporated legal practice is subject to an appointment under Chapter 5 of this Act and an appointment of a receiver under the Corporations Act.

145.	Incorporated legal practice subject to receivership under this Act and external administration under other legislation [CU] [MB s 1330]

This clause sets out how to resolve issues that arise if an incorporated legal practice is subject to an appointment under Chapter 5 of this Act of a receiver and an appointment of an external administrator.

146.	Co-operation between courts [CU] [MB s 1331]

This clause provides that Northern Territory courts may make arrangements for communication with other courts and tribunal concerning the exercise of powers under this Part.

147.	Relationship of Act to constitution of incorporated legal practice [CU] [MB s 1332]

This clause provides that the provisions of this Act prevail where there is an inconsistency with the constitution of the incorporated legal practice.

148.	Relationship of Act to legislation establishing incorporated legal practice [CU] [MB s 1333]

For an incorporated legal practice that is not a company under the Corporations Act this Act prevails over any legislation that otherwise applies to the incorporated legal practice.

149.	Relationship of Act to Corporations legislation [CU] [MB s 1334, s 35AZI]

This clause provides for the displacement of the Corporations Act. Notification of this clause is to be given under the Corporations Agreement 2002.

150.	Undue influence [CU] [MB s 1335, NT s 35AZM]

This clause that a person, being a legal practitioner director or an Australian legal practitioner who works for the incorporated legal practice, commits an offence if he or she induces another person to breach the Act or his or her professional obligations. The maximum penalty for breach is 400 penalty units ($44,000) and or 2 years imprisonment.

Division 3— Multi-disciplinary partnerships

151.	Nature of multi-disciplinary partnership [CU] [MB s 1336]

This clause defines "multi-disciplinary partnership". It is a partnership of individuals being Australian legal practitioners and persons who are not Australian legal practitioners (but excluding foreign lawyers).

152.	Conduct of multi-disciplinary partnerships [CU] [MB s 1337]

This clause permits an Australian legal practitioner to enter a partnership (for the provision of legal services) with a person who is not an Australian legal practitioner.

Regulations may be made excluding some types of occupations from being the subject of a multi-disciplinary partnership. For the Northern Territory it is proposed to make a Regulation based on Regulation 4 of the Legal Practitioners Regulations - that is, prohibiting a law practice operating as a conveyancing lawyer if the law practice is acting as a real estate agent for the vendor or as finance broker for the purchaser.

153.	Notice of intention to start practice in multi-disciplinary partnership [CU] [MB s 1338]

This clause makes in an offence for a person to start a multi-disciplinary partnership without first notifying the Law Society. The maximum penalty is 20 penalty units ($2,200) with the offence being one of strict liability.

154.	General obligations of legal practitioner partners [CU] [MB s 1339, s 35AZQ]

This clause provides that each legal practitioner partner of a multi-disciplinary partnership is responsible for the management of the multi-disciplinary partnership and must ensure that appropriate management systems are implemented and maintained.

155.	Obligations of legal practitioner partner relating to misconduct [CU] [MB s 1340, s 35AZR]

This clause provides that a legal practitioner partner of a multi-disciplinary partnership may be guilty of professional misconduct or unprofessional conduct in respect of the activities of Australian legal practitioners employed by the multi-disciplinary partnership or other partners. The legal practitioner partner is also responsible for taking all reasonable action to deal with professional misconduct or unprofessional conduct.

156.	Actions of partner who is not Australian legal practitioner [CU] [MB s 1341, s 35AZS]

This clause protects non lawyers who are partners in multi-disciplinary partnerships that provide legal services. They are protected from prosecution in respect of various activities that would, but for Part 2.6, be restricted to Australian legal practitioners.

157.	Obligations and privileges of practitioners who are partners or employees [CU] [MB s 1342, s 35AZU]

An Australian legal practitioner working in a multi-disciplinary partnership is subject to the same professional obligations and privileges as apply to other Australian legal practitioners.

158.	Conflicts of interest [CU] [MB s 1343, s 35AZV]

For the purpose of dealing with conflict of interest issues an Australian legal practitioner is deemed to have the same interest as the multi-disciplinary partnership.

159.	Disclosure obligations [CU] [MB s 1344, s 35AZW]

An Australian legal practitioner partner or employee of a multi-disciplinary partnership must, when the multi-disciplinary partnership is engaged to provide legal services, ensure that there is disclosure about the extent to which the services are to provide by an Australian legal practitioner. This clause deals with the situation where the advice sought could be given be either a lawyer or some other professional - eg tax or town planning advice.

See next clause for standard of care if disclosure is not made.

160.	Effect of non-disclosure of provision of certain services [CU] [MB s 1345]

If disclosure is not provided under clause 159, the standard of care is that expected for an Australian legal practitioner.

161.	Application of legal profession rules [CU] [MB s 1346]

The legal professional rules apply to Australian legal practitioner partners in, and employees of, multi-disciplinary partnerships.

162.	Requirements relating to advertising [CU] [MB s 1347]

Advertising requirements under the Act apply to multi-disciplinary partnerships.

163.	Sharing of receipts, revenue or other income [CU] [MB s 1348]

An Australian legal practitioner partner or employee of a multi-disciplinary partnership may share revenue with multi-disciplinary partnership partners who are not Australian legal practitioners.

164.	Disqualified persons [CU] [MB s 1349]

It is an offence for a legal practitioner partner of a multi-disciplinary partnership to knowingly be the partner of a disqualified person, to share income with a disqualified person or to employ or pay a disqualified person in respect of the provision of legal services.

165.	Prohibition on partnerships with certain partners who are not Australian legal practitioners [CU] [MB s 1350]

On application of the Law Society the Supreme Court may prohibit a person from being involved with a multi-disciplinary partnership.

166.	Undue influence [CU] [MB s 1351]

It is a breach of the Act for a person to induce a person to contravene the Act or his or her professional obligations.

Division 4 — Miscellaneous matters

167.	Obligations of individual practitioners not affected [CU] [MB s 1352] 

This clause provides that nothing in Part 2.6 affects obligations imposed on a legal practitioner director or a legal practitioner partner under any other Act.

168.	Regulations [CU] [MB s 1353]

Regulations may be made in respect of legal services provided by incorporated legal practices and multi-disciplinary partnerships.

PART 2.7— LEGAL PRACTICE BY FOREIGN LAWYERS [MB PT 14]

Division 1— Preliminary matters

169.	Purpose [NC] [MB s 1401]

This clause states that the purpose of Part 2.7 is to provide a framework for the regulation of the conduct of foreign law in Australia.

170.	Definitions [CU] [MB s 1402]

This clause contains definitions of:

·	Australia
·	Australian law
·	foreign law
·	foreign law practice
·	foreign registration authority
·	local registration certificate
·	overseas-registered foreign lawyer
·	practise foreign law
·	registered

171.	Part does not apply to Australian legal practitioners [CU] [MB s 1403]

An Australian legal practitioner cannot be registered to practise foreign law in the Northern Territory. However, Part 2.7 (including the prohibition in clause 172) does not apply to Australian legal practitioners.

Division 2 — Practice of foreign law

172.	Requirement for registration [CU] [MB s 1404]

This clause provides that a person must not practise foreign law in the Northern Territory unless registered or unless an Australian legal practitioner. The maximum penalty for breach is 500 penalty units ($55,000).

173.	Entitlement of Australian-registered foreign lawyer to practise in this jurisdiction [CU] [MB s 1405]

This clause provides that an Australian registered foreign lawyer is entitled to practise foreign law in the Northern Territory.

174.	Scope of practice [CU] [MB s 1406]

This clause sets out the services that may be provided by Australian registered foreign lawyers. In brief the scope of practice is limited to practising the law of the foreign jurisdiction in which the lawyer is registered or providing arbitration, conciliation or mediation proceedings as set in out in Regulations or appearances in tribunals (and the like, but not courts) where the rules of evidence to not apply.

Additionally, advice on Australian law can be provided as a matter incidental to the foreign law matter but only if it is based on advice provided by an Australian legal practitioner.

175.	Form of practice [CU] [MB s 1407]

This sets out how an Australian registered foreign lawyer may provide services. They may do so in partnership with another Australian registered foreign lawyer, as part of an incorporated legal practice or a multi-disciplinary practice or as an employee of an Australian legal practitioner or as an employee as an Australian registered foreign lawyer.

176.	Application of Australian professional ethical and practice standards [CU] [MB s 1408]

Conduct is prohibited if it would be professional misconduct or unprofessional conduct. Subject to any modifications in the Regulations, Chapter 4 applies in respect of disciplinary matters.

177.	Designation [CU] [MB s 1409]

This clause sets out that the titles/names of Australian registered foreign lawyer may use. In brief the titles include those that could be used in the relevant foreign jurisdiction, a name that is descriptive of the role. This clause operates subject to legislation such as the Business Names Act and the other provisions of this legislation and other legislation relating to names.

178.	Letterhead and other identifying documents [CU] [MB s 1410]

This clause requires letterheads etc to make it clear that, in respect of the practise of foreign law, the author is an Australian registered foreign lawyer and is only entitled to practise foreign law.

179.	Advertising [CU] [MB s 1411]

Australian registered foreign lawyers must comply with advertising rules set by the Law Society. However, there is a general prohibition on advertising that is false, misleading or deceptive or which suggests that the Australian registered foreign lawyer is an Australian legal practitioner.

180.	Foreign lawyer employing Australian legal practitioner [CU] [MB s 1412]

This clause provides that Australian registered foreign lawyers may employ Australian legal practitioners. It also sets out that such employed Australian legal practitioners cannot provide Australian legal advice (including advice to the employing Australian registered foreign lawyer).

181.	Trust money and trust accounts [CU, except (3) CNU] [MB s 1413]

This clause provides that Part 3.1 (trust monies) applies to Australian registered foreign lawyers in the same way that it applies to Australian legal practitioners. Regulations may be made in respect of the application of those principles.

182.	Professional Indemnity insurance [CU] [MB s 1414]

This clause provides that Australian registered foreign lawyers must have professional indemnity insurance that complies with one or other of the following:

(a)	the requirements of any jurisdiction; or
(b)	such as to cover practice in the Northern Territory and which complies with the relevant requirements of a foreign registration authority.  If this coverage is less than 1.5 million dollars disclosure of that fact must be made; or
(c)	if the lawyer has no insurance, disclosure of that fact must be made.

183.	Fidelity cover [CU] [MB s 1415]

Regulations may be made providing for the extent to which the provisions of Part 3.5 (Fidelity Fund) applies to Australian registered foreign lawyers.

Division 3— Local registration of foreign lawyers generally

184.	Local registration of foreign lawyers [CU] [MB s 1416]

This clause states the principle that overseas-registered foreign lawyers may be registered as Australian registered foreign lawyers.

185.	Duration of registration [CU] [MB s 1417]

This clause provides that registration of an Australian registered foreign lawyer lasts from the date of registration to the end of the relevant financial year.

186.	Locally registered foreign lawyer is not officer of Supreme Court [CU] [MB s 1418]

This clause states that an Australian registered foreign lawyer is not an officer of the Supreme Court.

Division 4— Applications for grant or renewal of local registration

187.	Application for grant or renewal of registration [CU] [MB s 1419]

This clause states that an overseas-registered foreign lawyer may apply to the Law Society for the grant or renewal of registration.

188.	Manner of application [CU] [MB s 1420]

This clause sets out the manner of making applications to the Law Society for the grant or renewal of registration.

189.	Requirements regarding applications for grant or renewal of registration [CU] [MB s 1421]

This clause sets out what must be contained in an application for registration.

In essence the application must provide details of the foreign registration and various details about any disciplinary action and the like that may be pending in respect of the applicant.

Division 5— Grant or renewal of registration

190.	Grant or renewal of registration [CU] [MB s 1422]

This clause sets out that the Law Society must consider applications for registration as an Australian registered foreign lawyer. If the Society imposes a condition or refuses an application, the Society must provide an information notice (see clause 224, regarding appeals).

191.	Requirement to grant or renew registration if criteria satisfied [CU] [MB s 1423]

This clause sets the basis on which the Law Society must grant registration of a person as an Australian registered foreign lawyer. It must do so if satisfied that the applicant is registered under an effective system for Regulation in the foreign jurisdiction and if satisfied that the applicant is not subject to any conditions or circumstances in the foreign jurisdiction making it inappropriate that the person be registered in the Northern Territory.

192.	Refusal to grant or renew registration [CU] [MB s 1424]

This clause sets out the circumstances in which the Law Society may refuse an application for registration as an Australian registered foreign lawyer. These circumstances are broadly similar to those that apply in respect of decisions about Australian legal practitioners.

Division 6 — Amendment, suspension or cancellation of local registration

193.	Application of this Division [CNU] [MB s 1425]

This clause sets out that Division 6 does not apply to matters referred to in Division 7.

194.	Grounds for amending, suspending or cancelling registration [CNU] [MB s 1426]

This clause sets out various grounds on which the Law Society may amend, suspend or cancel registration of an Australian registered foreign lawyer. The grounds include registration based on incorrect or misleading information, breaches of Part 2.7, disciplinary proceedings in the foreign jurisdictions, absence of professional indemnity insurance and any other ground that the Society considers sufficient.

195.	Amending, suspending or cancelling registration [CNU] [MB s 1427]

If the Law Society considers that reasonable ground exists to amend, suspend or cancel a registration, it may give notice of the intention to take such an action. This notice must set out the proposed course of action.

After considering representations from the Australian registered foreign lawyer the Society may take the action referred to in the notice. In imposing a disciplinary decision the Society must give an information notice (appeals are provided for in clause 224).

196.	Operation of amendment, suspension or cancellation of registration [CNU] [MB s 1428]

This clause provides for the time when amendments, suspensions or cancellations of the registrations of Australian registered foreign lawyers take effect and the circumstances in which such actions may be stayed or reversed.

197.	Other ways of amending or cancelling registration [CNU] [MB s 1429, NSW s 211]

This clause permits the Law Society to amend or cancel registration on application of the Australian registered foreign lawyer or for formal or clerical reasons or in ways that do not adversely affect the lawyer.

198.	Relationship of this Division with Chapter 4 [CNU] [MB s 1430]

This clause provides that Division 6 does not prevent complaints being made under Chapter 4.

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

199.	Applicant for local registration — show cause event [CNU] [MB s 1431]

This clause provides that a person seeking registration in the Northern Territory as an Australian registered foreign lawyer must give notice of any show cause event that has occurred after the initial registration of the Australian registered foreign lawyer (in another jurisdiction).

200.	Locally registered foreign lawyer — show cause event [CNU] [MB s 1432]

If a show cause event occurs in relation to a locally registered Australian registered foreign lawyer that person must give notice (and explanation) to the Law Society.

201.	Refusal, amendment, suspension or cancellation of local registration — failure to show cause [CNU] [MB s 1433]

The Law Society may refuse to grant or renew, or may amend, cancel or suspend as a consequence of a notice being given under clause 199 or 200.

202.	Restriction on making further applications [CNU] [MB s 1434]

If a person's registration as an Australian registered foreign lawyer is cancelled the Law Society may decide that the person cannot apply for registration for a specified period (for up to 5 years).

203.	Relationship of this Division with Part 4.6 and Chapter 6 [CNU] [MB s 1435]

The provisions of this Bill dealing with investigation of complaints (Part 4.6, Division 6) and investigatory powers (Chapter 6) apply to matters under Division 7.

Division 8 — Further provisions relating to local registration

204.	Immediate suspension of registration [CNU] [MB s 1436]

This clause provides that the circumstances in which the Law Society may, despite the processes set out in clauses 195 and 196, immediately suspend the registration of a person as an Australian registered foreign lawyer if such a course of action is necessary in the public interest. There is a right of appeal (clause 224).

205.	Surrender of local registration certificate and cancellation of registration [CNU] [MB s 1437]

This clause provides that an Australian registered foreign lawyer may surrender his or her certificate of registration.

206.	Automatic cancellation of registration on grant of practising certificate [CNU] [MB s 1438]

If an Australian registered foreign lawyer becomes an Australian legal practitioner his or her registration as an Australian registered foreign lawyer is automatically cancelled.

207.	Suspension or cancellation of registration not to affect disciplinary processes [CNU] [MB s 1439]

Disciplinary action may continue despite the fact that the registration as an Australian registered foreign lawyer has been suspended or cancelled.

208.	Return of local registration certificate on amendment, suspension or cancellation of registration [CNU] [MB s 1440]

On being required to do so by the Law Society a person whose registration has been amended, suspended or cancelled must return the certificate of registration to the Society. The maximum penalty for breach is 20 penalty units ($2,200).

Division 9 — Conditions on registration

209.	Conditions generally [CNU] [MB s 1441]

This clause describes the conditions that may apply to registration as an Australian registered foreign lawyer.

210.	Conditions imposed by Law Society [CNU] [MB s 1442]

This clause sets out the conditions that may be imposed on Australian registered foreign lawyers.

211.	Imposition or variation of conditions pending criminal proceedings [NC] [MB s 1443, NSW s 225]

This clause sets out the conditions that may be imposed by the Disciplinary Tribunal if an Australian registered foreign lawyer is charged with an offence (as defined in clause 211(5)) but the charge has not been determined.

212.	Statutory condition regarding notification of offence [CNU] [MB s 1444]

This clause states that it is a statutory condition that an Australian registered foreign lawyer give notice to the Law Society on being convicted of certain offences or on being charged with a serious offence.

213.	Conditions imposed by the Regulations [CNU] [MB s 1445]

This clause provides that Regulations may provide conditions or may authorise the imposition of conditions.

214.	Compliance with conditions [CNU] [MB s 1446]

This clause makes it an offence to fail to comply with a condition of registration. The maximum penalty for breach is 500 penalty units ($55,000).

Division 10 — Interstate-registered foreign lawyers

215.	Extent of entitlement of interstate-registered foreign lawyer to practise in this jurisdiction [CNU] [MB s 1447]

This clause sets out general limitations on the scope of practice of an interstate Australian registered foreign lawyer.

216.	Additional conditions on practice of interstate-registered foreign lawyers [CNU] [MB s 1448]

This clause provides that the Law Society may impose on an interstate Australian registered foreign lawyer conditions that are imposed on Northern Territory registered Australian registered foreign lawyers.

Division 11— Miscellaneous matters

217.	Consideration and investigation of applicants and locally registered foreign lawyers [CNU] [MB s 1449]

This clause provides that the Law Society may require information and cooperation for the purpose of considering applications. Failure to comply is a ground for the Society reaching an adverse conclusion in respect of the application.

218.	Register of locally registered foreign lawyers [CNU] [MB s 1450]

This clause provides that the Law Society must keep a public register of names of locally registered foreign lawyers.

219.	Publication of information about locally registered foreign lawyers [CNU] [MB s 1451]

This clause provides that the Law Society may publish details of locally registered lawyers as it considers fit.

220.	Supreme Court orders about conditions [CNU] [MB s 1452]

This clause provides that the Law Society may apply to the Supreme Court for an order or injunction that the lawyer not contravene a condition. This clause does not limit clause 700 (which deals generally with injunctions).

221.	Exemption by Law Society [CNU] [MB s 1453]

This clause provides that the Law Society may exempt an Australian registered foreign lawyer from compliance with any provision of the legislation.

222.	Membership of professional association [CNU] [MB s 1454]

This clause provides that an Australian registered foreign lawyer is not required to join a professional association such as the Law Society.

223.	Refund of fees [NC] [MB s 1455]

This clause provides that the Regulations may provide for the refund of fees on the cancellation or suspension of a certificate of registration.

224.	Appeals [CNU] [MB s 1456]

This clause lists the appeals to the Supreme Court that can be made under Part 2.7.

PART 2.8 — COMPLYING COMMUNITY LEGAL CENTRES

225.	Purpose of Part

This clause states that the purpose of Part 2.8 is to facilitate the provision of legal services. by non profit Community Legal Centres.

226.	Definitions [NT s 135XA]

This clause contains definitions of:

·	employ
·	engage
·	supervising legal practitioner

227.	Complying Community Legal Centre [NT 135X6]

This clause contains a definition of Complying Community Legal Centre. One of the requirements is that the centre employ a qualified legal practitioner ("supervising legal practitioner"). A Community Legal Centre must advise the Law Society of the name of the current supervising legal practitioner.

228.	Qualifications of supervising legal practitioner [NT 135XC]

This clause sets out the qualifications for a supervising legal practitioner. The person must be an Australian legal practitioner with an unrestricted practising certificate.

229.	Temporary engagement of supervising legal practitioner [NT 135XD]

This clause permits a Community Legal Centre for periods of 12 weeks to engage (i.e. not employ) a supervising legal practitioner if it is not possible to employ a supervising legal practitioner and if the person temporarily engaged will be able to supervise the legal practice of the Community Legal Centre. The Society must be satisfied that the benefits of the temporary engagement outweigh the disadvantages of not having a full time employed supervisor. The Statutory Supervisor may review (and override) any decision of the Law Society to refuse approval under this clause.

230.	Notice of change of supervising legal practitioner [NT 135XC]

This clause provides that a Community Legal Centre must advise the Law Society of any changes in the supervising legal practitioner.

231.	Application of Parts 3.1, 3.4, 3.5 and Chapters 5, 6 and 9 [NT 135XF & 135XH]

This clause provides that Parts 3.1 (trust monies), 3.4 (indemnity insurance), 3.5 (Fidelity Fund) and Chapters 5 (external intervention), 6 (Investigatory powers) and 9 (Miscellaneous matters) applies if:

·	references in them to a law practice are reference to a Complying Community Legal Centre

·	the supervising legal practitioner were a principal of the law practice

A Complying Community Legal Centre must not operate a trust account unless the supervising legal practitioner is a signatory to the account. However, this does not mean that each holder of an unrestricted practising certificate must open a trust account.  Only one trust account should be opened (and only if trust monies are handled by the Community Legal Centre).

232.	Provision of legal services

This clause provides that a Complying Community Legal Centre is not in breach of this Act merely because it provides legal services or does things and activities related to the provision of legal services.

233.	Entitlement to costs in proceeding [NT, s. 22(5) and (6)]

This clause makes it clear that Community Legal Centres are entitled to costs orders in their favour notwithstanding that their clients may not be liable to pay any such costs to the Community Legal Centre.

CHAPTER 3 - CONDUCT OF LEGAL PRACTICE 

PART 3.1 — TRUST ACCOUNTS AND TRUST MONEY [MB PT 3.3]

Division 1— Preliminary matters

234.	Purposes of Part [NC] [MB s 701]

This clause sets out that the purposes of this Part are to provide for the regulation of trust monies, to facilitate running of trust accounts on a national basis and to facilitate cooperation between state and territory regulatory bodies.

235.	Interpretation [CU] [MB s 702]

This clause contains definitions of:

·	approved ADI
·	approved trust account
·	controlled money
·	controlled money account
·	deposit record
·	designated persons
·	external examination
·	general trust account
·	investigation
·	investigator
·	permanent form
·	power
·	transit money
·	trust account
·	trust money protocols
·	trust records

236.	Money involved in financial services or investments [CNU] [MB s 703]

This clause provides that certain monies held by law practices are not trust monies for the purposes of the Act. These monies include those held by a person who has or should have an Australian financial services licence, monies held for or in connection with a managed investment scheme or mortgage financing.

Additionally monies held for investment purposes are only trust monies if they are held as part of the ordinary course of legal practice, primarily relate to the provision of legal services and the investment is made for the ancillary purpose of maintaining or enhancing the value of the money pending the completion of the matter in respect of which it has been held.

237.	Determinations about status of money [CU] [MB s 704]

This clause permits the Law Society to make a binding determination as to whether certain monies are trust monies for the purposes of the Act.  This binding determination operates subject to any decision of a court.

238.	Application of Part to law practices and trust money [CU] [MB s 705]

This clause sets out the rules for determining whether this Act, or some other State or Territory Act, applies to the holding of trust monies by a law practice.  The main provisions are:

·	this Act applies if trust monies are received by the law practice in the Northern Territory (i.e. whether or not the law practice has an office in the Northern Territory and whether or not the law practice has an office in some other jurisdiction);

·	this Act applies to money received outside of the Northern Territory if the law practice's only office is in the Northern Territory;

·	this Act applies to money received outside of the Northern Territory if the law practice has an office in the Northern Territory but not in the place where the money is received (subject that this rule does not apply if the money is dealt with in accordance with the law of some other State or Territory).

Regulations can be made that modify the operation of these principles.

239.	Trust money protocols [CU] [MB s 706]

This clause sets out that the Law Society may enter into protocols with other regulatory bodies for determining which jurisdiction has responsibility for trust money and for the sharing of information.  Such protocols are only effective if contained in or referred to in a Regulation.

240.	When money is received [CU] [MB s 707]

This clause defines when trust money is received.

241.	Discharge by legal practitioner associate of obligations of law practice [CU] [MB s 708]

This clause sets out various actions that, if taken by a legal practitioner associate, discharge the obligations of the law practice.

242.	Liability of principals of law practice [CU] [MB s 709]

This clause provides that a provision of Part 3.1 that is binding on law practices imposes the same obligations on the principals of the law practice. The term "principal" is defined in clause 6(3).

243.	Former practices, principals and associates [CU] [MB s 710]

This clause provides that Part 3.1 applies to former law practices, principals and associates - in relation to conduct that took place whilst they were performing their former functions.

244.	Barristers receiving money on behalf of other persons [NC] [MB s 710A] [NSW s 252]

This clause provides that as general rule barristers are not to receive trust money.  However, the Regulations may authorise a barrister to receive trust monies.  These regulations may cover the situation where barristers receive fees in advance of providing legal service.

Division 2 — Trust accounts and trust money

245.	Maintenance of general trust account [CU] [MB s 711]

This clause provides that a law practice that receives trust money must maintain one or more trust accounts in the Northern Territory.  Such accounts must be maintained in accordance with the Regulations. However, if a law practice only receives controlled money or transit money (other than cash) there is no obligation to maintain a trust account.  Regulations may control the circumstances in which trust accounts may be closed.

246.	Certain trust money to be deposited in general trust account [CU] [MB s 712]

As a general principle, trust money must be deposited in a trust account as soon as practicable after it is received.  This principle does not apply if there is an appropriate written direction to the contrary or if the money is controlled or transit money or the money is to be handled with another person under a power of attorney.

If there is a written direction the law practice must comply with the direction and must keep a copy of the direction for the period prescribed by Regulation.

The maximum penalty for breach is 500 penalty units ($55,000).

247.	Holding, disbursing and accounting for trust money [CU] [MB s 713]

This clause provides that trust money in a general trust account must be held exclusively for the client and must be disbursed in accordance with the directions of the person on whose behalf the money has been received.  If there is a written direction the law practice must comply with the direction and must keep a copy of the direction for the period prescribed by Regulation.

The maximum penalty for breach is 500 penalty units ($55,000).

248.	Controlled money [CU] [MB s 714]

This clause provides that a law practice must deposit controlled money in accordance with the written direction relating to such money.  The money must be held exclusively for the client and must not be disbursed except in accordance with the appropriate written direction.  Except in accordance with the Regulations, controlled monies must be kept in separate controlled money accounts.

The maximum penalty breach is 500 penalty units ($55,000).

249.	Transit money [CU] [MB s 715]

This clause provides that transit money must be paid within the period specified in the instructions or in the absence of such a period as soon as practicable after it is received.  The money must be accounted for in accordance with the Regulations.  The maximum penalty breach is 500 penalty units ($55,000).

250.	Trust money subject to specific powers [CU] [MB s 716]

This clause provides that where a law practice is acting under a power of attorney the law practice must ensure that the money is only dealt with by the law practice in accordance with the power.  The maximum penalty for breach is 500 penalty units ($55,000).

251.	Trust money received in form of cash [CU] [MB s 716A]

This clause provides that as a general rule trust money (other than money subject to a power of attorney and controlled money) that is cash must be deposited in the general trust account.  However, in accordance with a written direction the money can subsequently be dealt with in accordance with such a direction.  The same general principle also applies to monies received under a power of attorney.

Controlled money that is cash is dealt with in accordance with clause 248.

252.	Protection of trust money [CU] [MB s 717]

This clause provides that trust money cannot be used to satisfy the claims of third parties against the law practice.

253.	Intermixing money [CU(1); NC (2)] [MB s 718]

This clause provides that a law practice must not mix trust money unless permitted to so by the Law Society.  The maximum penalty for breach is 500 penalty units ($55,000).  The offences in this clause are strict liability offences.

254.	Dealing with trust money — legal costs and unclaimed money [CU] [MB s 719]

This clause provides that a law practice may, in respect of trust money, exercise a lien, withdraw money to pay for amounts owing to the law practice, and deal with any balance as unclaimed money under clause 259.

255.	Deficiency in trust account [CU] [MB s 720]

This clause provides that an Australian legal practitioner is guilty of an offence if he or she causes any deficiency in any trust account or a failure to pay or deliver any trust money.  The maximum penalty for breach is 500 penalty units ($55,000).

256.	Reporting certain irregularities and suspected irregularities [CU] [MB s 721]

This clause provides a duty on legal practitioner associates and Australian legal practitioners to give written notice to the Law Society or corresponding authorities of any irregularities in the trust accounts or the trust ledger accounts of the law practice.  The maximum penalty for breach of this duty is 20 penalty units ($2,200).

257.	Keeping trust records [CU] [MB s 722]

This clause provides that trust records must be kept in a permanent form (as defined in clause 235 (MB 702).  The trust records must also be maintained in accordance with the Regulations and also so as to provide the true position and so as readily be examined and for a period as prescribed by the Regulations.  The maximum penalty for breach is 500 penalty units for a natural person.

258.	False names [CU] [MB s 723]

This clause must not receive money or record the receipt of money under a false name.  The maximum penalty for breach is 500 penalty units ($55,000).

259.	Unclaimed trust money [NT s 138 NT]

This clause provides that unclaimed monies are paid to the Fidelity Fund.  Monies are unclaimed if held for 2 years by a legal practitioner with the legal practitioner having no knowledge of the existence of or address of the client.

260.	When Funds Management Committee may pay unclaimed amount

This clause provides for the repayment by the Funds Management Committee to persons who claim to be entitled to the monies. Pending any such payments the unclaimed monies remain in the Fidelity Fund.

261.	Appeal against decision to refuse claim for unclaimed amount

If the Funds Management Committee refuses to make a repayment, the claimant may appeal to the Supreme Court against the decision.

Division 3—Investigations and external examinations

Subdivision 1 – Investigations

262.	Appointment of investigators [NC] [MB s 724]

This clause provides that the Law Society may appoint persons to investigate the affairs of a law practice.

263.	Investigations [NC] [MB s 725]

This clause provides for the contents of an instrument of appointment of an investigator.  The instrument may provide for routine investigations or for specific investigations.

264.	Application of Chapter 6 [NC] [MB s 726]

This clause provides that Chapter 6 (which contains general provisions about investigations) applies to investigations under subdivision 1 of Division 3.

265.	Investigator's report [NC] [MB s 727]

This clause provides that an investigator must give a written report to the Law Society as soon as practicable.

266.	Confidentiality by investigator[NC] [MB s 727]

The clause also makes it an offence for an investigator to disclose information other than as permitted under the Act.  The maximum penalty for breach is 500 penalty units ($55,000) or 6 months imprisonment.

267.	When costs of investigation are debt [NC] [MB s 728]

This clause provides that, in some circumstances, the costs of investigation are payable by the law practice.  The circumstance is where the investigator specifies that there has been a breach of the Act or that there has been a fraud or defalcation.

Subdivision 2 - External examinations

268.	Designation of external examiners [NC] [MB s 729]

This clause provides that the Law Society may designate persons as being eligible to be appointed as external examiners.  Such persons may be employees or agents of the Society (but does not necessarily be such employees or agents).  Designated persons may appoint assistants.

269.	Designation and appointment of associates as external examiners [NC] [MB s 732]

This clause provides that an associate (as defined in clause 4(1)) of a law practice may be designated as an external examiner.  However, such an associate cannot examine the trust records of the law practice of which he or she is an associate.

270.	Trust records to be externally examined [NC] [MB s 730]

This clause provides that a law practice must, once a year, have its trust records externally examined.

The Law Society may appoint an external examiner for a law practice if the law practice has not had its trust records.

The term "external examination" replaces the terminology of audit as contained in the current Northern Territory legislation - see Division 5, Part VII of the Legal Practitioners Act.  It was considered that such "audits" are not "audits" as understood by auditors.

271.	Final examination of trust records [NC] [MB s 733] [+ NSW 275(4)]

If a law practice ceases to be authorised to receive trust monies or ceases to engage in legal practice the law practice must appoint an external examiner to examine the law practice's trust records.  The maximum penalty for breach is 500 penalty units ($55,000).

A law practice must lodge a report from such an external examination within 60 days of the end of the period to which the examination relates.  The law practice must also lodge a statutory declaration (in the form prescribed by Regulation) within 60 days of ceasing to hold trust money.  The maximum penalty for breach is 20 penalty units ($2,200).

Within 12 months of ceasing to be able to receive trust monies or ceasing to engage in legal practice in the Northern Territory the law practice must ensure that all trust accounts are closed and that all trust monies are dealt with as required by the Regulations.  The maximum penalty for breach is 500 penalty units ($55,000).

272.	Examination of affairs in connection with examination of trust records [NC] [MB s 734]

This clause sets out that an external examiner may, in examining a law practice's trust records also examine the affairs of the law practice - including the affairs of incorporated legal practices and multi disciplinary partnerships.  The word "affairs" is defined in clause 4.

273.	Carrying out examination [NC] [MB s 735]

This clause provides that Chapter 6 (which contains general provisions about investigations) applies to external examinations under subdivision 2.  However, external examinations must be carried out in accordance with the Regulations with the Regulations potentially providing for the standards to be adopted and the procedures to be followed by external examinees and also the form and content of the reports of external examiners.

274.	External examiner's report [NC] [MB s.736 (1)]

This clause provides that an external examiner must give a written report to the Law Society as soon as practicable.

275.	Confidentiality of external examiner [NC] {MB s 736(2)] 

The clause also makes it an offence for an external examiner to disclose information other than as permitted under the Act.  The maximum penalty for breach is 400 penalty units ($44,000) or 2 years imprisonment.

276.	Law practice liable for costs of examination [NC] [MB s 737]

This clause provides that a law practice is responsible for the costs of external examinations.  This maintains the principle contained in the current Northern Territory Legal Practitioners Act - which is that law practice pay for the audits required by that Act.

Subdivision 3 — General matters

277.	Appeals

This clause sets out that a law practice may appeal against certain decisions of the Law Society (i.e. dealing with the requirements of the Society that the law practice pay the costs of investigations and external examinations that have been arranged by the Society).

Division 4— Provisions relating to ADIs

278.	Approval of ADIs [NC] [MB s 738]

The Law Society may approve ADIs at which trust accounts can be maintained - noting that trust monies can only be held in accounts of approved ADIs.

279.	ADI not subject to certain obligations and liabilities [NC] [MB s 739]

This clause states that an ADI is not under any obligation to control or supervise transactions and does not (in respect of monies owed by the law practice) have any right of action or set off in respect of trust monies.

280.	Reports, records and information [NC] [MB s 740]

This clause provides that the ADI at which trust monies are held is under an obligation to report certain matters (such as deficiencies in trust accounts) to the Law Society.  ADIs are also obligated to provide certain reports (as per Regulations) to the Society.  ADIs must, without charge, produce various documents and records.

The maximum penalty for breach is 100 penalty units ($11,000). 

Division 5— Security deposits

281.	Statutory deposits [NC] [MB s 741]

This clause provides that the Regulations may require that law practice deposit some of the monies held in trust in an account held by a statutory body prescribed by Regulation.

It is not intended that such Regulations will be made.

282.	Status and repayment of deposited money [NSW s 284]

This clause states that monies held in a statutory deposit are held in trust by the statutory deposit holder, are repayable on demand and may be invested in accordance with the Trustee Act.

Division 6 — Miscellaneous matters

283.	Restrictions on receipt of trust money [NC] [MB s 742]

A law practice can only receive trust monies if a principal holds a practising certificate that authorises the holding of trust monies.

284.	Application of Part to incorporated legal practices and multi­disciplinary partnerships [NC] [MB s 743]

This clause provides that the obligations imposed by Part 3.1 apply to incorporated legal practices and multi-disciplinary partnerships only in connection with legal services provided by them.  The Regulations may provide that certain provisions of Part 3.1 do or do not apply to incorporated legal practices and multi-disciplinary partnerships.

285.	Disclosure to clients — money not received as trust money [NC] [MB s 743A] [NSW s 298]

This clause provides that if a law practice receives money that is not trust money or which ceases to be trust money, the law practice must disclose this status to the client.  The maximum penalty for breach is 100 penalty units ($11,000).

286.	Disclosure of accounts used to hold money entrusted to legal practitioners [MB s 743B] [NSW s 299]

This clause obliges law practices to advise, in accordance with the Regulations, the Law Society of the details of all accounts at ADIs where trust monies are held.

287.	Regulations [NC] [MB s 745]

This clause provides for the making of Regulations necessary for the operation of Part 3.1.

PART 3.2 — ADVERTISING LEGAL SERVICES FOR PERSONAL INJURY CLAIMS

288.	Application of Part [NT s.130AA]

This clause sets out the types of advertisements and publications that are not subject to the requirements set out Part 3.2.

289.	Definitions [NT s.130AB]

This clause sets out the definitions necessary for Part 3.2.

290.	Restriction on advertising in relation to personal injury claims [NT s.130AC]

This clause makes it an offence for an Australian legal practitioner to publish a statement with the intention of inducing that the person make a claim for compensation arising from a personal injury.  The maximum penalty for breach is 50 penalty units ($5,500).  There is no breach if the publication is published in accordance with the legal profession rules.

291.	Permitted methods of advertising [NT s.130AD]

This clause sets out the publications for the purposes of clause 290.

292.	Prohibition against touting for potential claimants [NT s.130AE]

This clause provides that it is an offence for a person who witnesses an
accident to solicit or induce a potential claimant involved in an accident to make a claim.

This clause also makes it an offence in the course of employment obtains information about an accident, contacts a potential claimant and solicits or induces a potential claimant to make a claimant.

293.	Prohibition against paying or touting for potential claimants [NT s.130AF]

This clause provides that it is an offence for a person to pay someone for that person's soliciting or inducing a claim for personal injuries damages.  Similarly it is an offence to seek such a payment.  The maximum penalty is 50 penalty units ($5,500).

Part 3.3 — COSTS DISCLOSURE AND ASSESSMENT [MB PT 10]

Division 1— Preliminary matters

294.	Purposes of Part [NC] [MB s 1001]

This clause sets out that the purposes of Part 3.3 are to provide for the disclosure of costs by law practice to clients, to regulate the making of costs agreements, to regulate billing and to provide for the review of legal costs.

295.	Interpretation [CU; except NC as marked] [MB s 1002]

This clause contains definitions of:

·	bill
·	conditional costs agreement
·	costs
·	costs agreement
·	costs assessment
·	costs assessors
·	disbursements
·	fixed costs provisions
·	itemised bill
·	litigious matter
·	lump sum bill
·	public authority
·	sophisticated client. This definition identifies clients who do not require disclosure about legal costs and avenues for disputing legal costs because of their commercial size or status, or knowledge of the law
·	third party payer
·	uplift fee

Additionally, references in Part 3.3 to law practices include references to former sole practitioners, executor of former practitioners and trustees or administrators of the estates of former practitioners, former partners, assignees, receivers and persons prescribed by Regulation.

296.	

Terms relating to third party payers [CU] [MB s 1002A]

This clause defines "third party payer".

Division 2 — Application of Part

297.	Application of Part — first instructions rule [CU] [MB s 1003]

This clause sets out that Part 3.3 applies to a matter only if the client first instructs the law practice in the Northern Territory in respect of the matter.  This means that the equivalents to Part 3.3 of other jurisdictions will apply if the first instructions occur in the other jurisdiction.  See clause 300 for 'how' and 'when' a first instruction is to occur.

298.	Part also applies by agreement or at client's election [CU] [MB s 1004]

This clause provides that Part 3.3 may also apply in circumstances other than those mentioned in clause 297.  In the situation where the legal services are to be either primarily provided in the Northern Territory or where the matter has a substantial connection with the Northern Territory, the client may sign an appropriate agreement or give a notice to the effect that this Part is to apply.

299.	Displacement of Part [CU] [MB s 1005]

This clause provides that clauses 297 and 298 do not apply if, in effect, the client signs an agreement to gives a notification under a provision of another jurisdiction's law that is equivalent to clause 298.

300.	How and where client first instructs law practice [CU] [MB s 1006]

This clause states the rule for determining when a client has first instructed a law practice in a particular jurisdiction.  The rule is that the first instruction occurs if the first instruction (whatever the form) occurs in the jurisdiction.

301.	When does matter have substantial connection with this jurisdiction [CU] [MB s 1007]

This clause provides that the Regulations may set out the rules for determining whether or not, for the purpose of clause 298, a matter has a substantial connection with the Northern Territory.

302.	What happens when different laws apply to matter [CU] [MB s 1008]

This clause deals with the situation where Part 3.3 only applies to a matter for a period of time (with some other jurisdiction's law applying for the remainder of the period of the matter).  In essence, in the absence of an agreement of the client to something else, this Part applies in respect of legal costs incurred whilst this Part applied and does not apply to any subsequent period - so long as a corresponding law does apply.  However, the client may sign an agreement nominating that either Part 3.3 or some other jurisdiction's law is to apply to the entire proceedings.

Division 3 — Costs disclosure

303.	Disclosure of costs to clients [CU; except NC (1)(b)(ii) & (iii)] [MB s 1009]

This clause provides that a law practice must disclose the basis on which legal costs are to be calculated along with the client's right to negotiate, receive a bill, request an itemised bill, to be notified of changes, an estimate of costs or a range of costs, billing intervals, range of costs that may be recovered (in litigation matters), right to progress reports, dispute rights and information about which jurisdiction's law may apply.

304.	Disclosure if another law practice is to be retained [CU] [MB s 1010]

This clause sets out what a law practice must do if it intends to retain another law practice (eg a barrister) on behalf of a client.  The retained law practice must disclose to the retaining law practice sufficient information to enable the retaining law practice to disclose the relevant information about the costs to be charged by the retained law practice.

305.	How and when must disclosure be made [CU] [MB s 1011]

This clause provides that disclosure must be made in writing before, or as soon as practicable after the law practice is retained.  The same principle also applies to retained law practices except where the retainer is arranged in urgent circumstances - in which case it should be made orally and confirmed in writing.

306.	Exceptions to requirement for disclosure [CU] [CNU for amounts] [MB s 1012]

This clause sets out various exceptions to the disclosure requirement imposed by clauses 303 and 304.  The most significant exceptions include:

·	where the total legal costs is less than $1500 (or another higher figure is prescribed by Regulation)

·	there has been disclosure in the previous 12 months, the client waives further disclosure and a principal of the law practice agrees
·	certain sophisticated clients
·	costs determined as part of a tender process
·	costs that will not be paid by the client (eg pro bona services)

However, all clients are entitled to progress reports in accordance with clause 312, the right to information about the matters referred to in clause 303 and the right to negotiate a costs agreement and obtain a bill.

307.	Additional disclosure — settlement of litigious matters [CU] [MB s 1013]

This clause provides that a law practice that is negotiating the settlement of litigation must disclose a reasonable estimation of legal costs and the reasonable estimate of any contributions from any other party.

308.	Additional disclosure — uplift fees [NC] [MB1014] [NSW s 314]

This clause sets out the disclosure obligations regarding uplift fees. Such additional disclosure is not required for sophisticated clients.

309.	Form of disclosure [CU] [MB s 1015]

This clause provides that the disclosure must be in writing but can be in another language and in some cases must be conveyed orally.

310.	Ongoing obligation to disclose [CU] [MB s 1016]

This clause provides that a law practice must notify a client of any substantial changes to matters that have been disclosed.

311.	Effect of failure to disclose [CU] [MB s 1017]

If a law practice fails to comply with disclosure requirements:

·	the client need not pay the legal costs unless assessed in accordance with Division 8 (clauses 331-366).
·	the costs agreement may be set aside.
·	such conduct may constitute unsatisfactory professional conduct or professional misconduct.

Where a law practice (typically a solicitor) has retained another law practice (typically a barrister) on behalf of a client, and the second law practice fails to provide relevant information to allow the first law practice to make the costs disclosure required by the Act, the above consequences do not apply to the first law practice's legal costs to the extent that the first law practice's failure to disclose was caused by the second law practice. The consequences do, however, apply to the second law practice's legal costs.

312.	Progress reports [CU] [MB s 1018]

This clause provides that on the reasonable request of a client the law practice must give a written progress report or a written report on costs incurred.

313.	Disclosure to associated third party payers [CU] [MB 1018A]

This clause provides that disclosure must also be made to third party payers.

Division 4— Legal costs generally

314.	On what basis legal costs recoverable [CU] [MB s 1019]

This clause sets out that costs are recoverable:

·	in accordance with an applicable fixed costs provision;
·	under a costs agreement;
·	if the above do not apply, in accordance to the fair and reasonable value of the legal services provided.

315.	Security for legal costs [NC] [MB s 1020]

This clause provides that a law practice may take securities for the payment of legal costs (including for interest on those legal costs).

316.	Interest on unpaid legal costs [NC] [NSW s 321, MB s 1021]

This clause states that a law practice may charge interest on legal costs that have been unpaid for 30 days. The rate of interest must not exceed that which is determined in accordance with clause 316(4).

Division 5— Costs agreements

317.	Making costs agreements [CU (1), (2) & (5); NC (3) & (4)] [MB s 1022]

This clause provides for the making of costs agreements. Such agreements must be in writing or evidenced by writing.  They must clearly indicate that they are costs agreements and they cannot provide that costs are not subject to assessment under Division 7.

318.	Conditional costs agreements [NC] [MB s 1023]

This clause provides that costs agreement may provide that the payment of costs is conditional on a specified successful outcome of the matter.  However:

·	there cannot be conditional costs agreements for criminal matters and family law matters and for matters prescribed by Regulation (these are expected to cover adoptions, crimes compensation and community welfare - as in Regulation 9 of the current Legal Practitioners Regulations)
·	the agreement must set out what is a successful outcome
·	the agreement must contain a cooling period of 5 days
·	the agreement must state that the client has a right to seek independent legal advice
·	the procedural protections do apply in respect of costs agreements between law practices.
·	if the client calls off the agreement during the cooling off period the law
·	practice is not able to recover the uplift fee.

319.	Conditional costs agreements involving uplift fees [NC] [MB s 1024] [NT s. 129B]

This clause sets out that the Regulations may impose a maximum percentage by which an uplift fee can be determined.  At this time it is proposed to maintain the current position - ie that no such percentage be prescribed.

320.	Contingency fees are prohibited [CU] [MB 1025] [NSW 325]

This clause provides that a law practice must not enter into a costs agreement where the amount of costs payable is determined on the basis of the financial outcome in a litigation matter.

321.	Effect of costs agreement [CU (1); NC (2)] [MB s 1026]

This clause provides that costs agreements are enforced as contracts subject to Divisions 5 and 7.

322.	Certain costs agreements void [CU; except NC (4) ] [MB s 1027]

This clause provides that a costs agreement that breaches Division 5 is void.  However, legal costs under a void costs agreement can be recovered in accordance with clause 314 subject that the amount recovered cannot exceed the amount that would have been recovered if the costs agreement had not been void.

None of an uplift fee can be recovered if there has been a breach of clause 319 (uplifts). No legal costs are recoverable if there has been a breach of clause 320 (contingency fees).

323.	Setting aside costs agreements [CNU] [MB s 1028]

A client may apply to a costs assessor for an order that a costs agreement be set aside if the agreement is not fair or reasonable.

The clause sets out the matters that must be taken into account by a costs assessor in determining whether an agreement is fair and reasonable.

Division 6 — Billing

324.	Legal costs cannot be recovered unless bill has been served [NC] [MB s 1029]

This clause provides that a law practice cannot commence legal proceedings for the recovery of costs unless at least 30 days has passed since a bill has been given in accordance with clauses 325-326.  However, a court can approve a lesser period if the client is about to leave the jurisdiction.

325.	

Bills [NC] [MB s 1030]

This clause provides that a bill can be in the form of a lump sum or be itemised.  The clause also sets out how bills are to be signed and delivered.

326.	Notice of client's rights [CU] [MB s 1031]

This clause provides that bills must be accompanied by explanation of the rights of a client to dispute a bill.

327.	Request for itemised bill [NC] [MB s 1032A]

This clause provides that if a law practice provides a lump sum bill the client may, within 30 days, request that an itemised bill be provided.

328.	Interim bills [NC] [MB s 1032]

This clause provides that law practice may give interim bills covering a part of the legal services that have been provided.

Division 7 — Mediation of costs disputes

329.	Definitions [NSW s 335]

This clause, for the purposes of Division 7, contains definitions of:

·	client
·	costs disputes

330.	Referral for mediation [NSW s 336]

This clause provides that clients and the Registrar may, for disputes for less than $10,000, refer the matter to the Statutory Supervisor to arrange for mediation.  If the amount is less than $5,000 the Registrar may require the matter to be referred for mediation.

Division 8 — Costs assessment

Subdivision 1 — Interpretation

331.	Definition [NC] [MB s 1033A]

This clause contains a definition of the word "client".

Subdivision 2 — Applications

332.	Application by clients or third parties for costs assessment [CNU; except CU (6)] [MB s 1033]

This clause provides for applications for costs assessments.

333.	Application for costs assessment by law practice retaining another law practice [CNU] [MB s 1034]

This clause provides that a client may apply to a costs assessor for an assessment of the legal costs.  Such an application can be made despite the fact that the legal costs may have been paid.

334.	Application for costs assessment by law practice giving bill [CNU] [MB s 1035]

This clause provides that a law practice may apply to a costs assessor for an assessment of the legal costs given by another law practice.  Such an application can be made despite the fact that the legal costs may have been paid.

335.	How to make an application for costs assessment [NC] [MB s 1036]

This clause provides for the form in which an application for a costs assessment should be made.

336.	Consequences of application [CNU] [MB s 1038]

If an application for a costs assessment is made:

·	no money can be paid into court
·	the law practice cannot commence any proceedings

337.	Persons to be notified of application [CNU] [MB s 1038]

This clause provides that a costs assessor must provide copies of the application to the appropriate persons.

Subdivision 3 — Assessments

338.	Procedure on assessment [NC] [MB s 1039]

This clause provides that a costs assessment may proceed despite one of the parties not attending.

339.	Assessment of complying costs agreements [CU} [NSW 361, MB 1040A]

This clause sets out that costs must be assessed in accordance with a costs agreement unless the agreement does not comply with the disclosure provisions or Division 5 precludes the recovery of costs by the law practice.

340.	Costs fixed by other legislation [NSW s 362]

If another Act provides for the assessment of costs the costs must be assessed in accordance with the other Act.

341.	Criteria for costs assessment [NC] [MB 1040]

This clause sets out the criteria for assessing costs.

342.	Legal costs subject to consumer dispute not subject to assessment [NC] [MB s 1045]

If legal costs have been the subject of a consumer dispute (Part 4.5) costs cannot be the subject of a costs assessment.

343.	Contracting out of Division by sophisticated client [CNU] [MB 1046A]

A sophisticated client can contract out of these provisions.

Subdivision 4 — Determinations

344.	Determination of costs assessment [NSW s 367]

This clause states that a costs assessor must determine a costs application by making a decision, in respect of the matters in the bill, as whether the costs are unfair or unreasonable and, if yes, substituting an amount that is fair and reasonable.

345.	Certificate of determination [NSW s 368]

The costs assessor must issue a certificate of determination in respect of a costs assessment.  Such certificates are taken to have the status of court judgments and can be enforced as such by clients and law practices.  If the assessor's costs are not paid an assessor may refuse to issue the certificate.

346.	Recovery of costs of assessment [NSW s 369]

For costs assessments for matters for which there has been a failure to disclose or which a court or tribunal has ordered an assessment of costs the costs assessor must also make a determination about the costs of the costs determination.  The clause sets out that the law practice is responsible for clause 311 assessments.  Costs assessors may refer issues of law to the Supreme Court.

347.	Reasons for determination [NSW s 370]

A costs assessment must contain reasons for the determination and such other information as is required by the Regulations.

348.	Correction of error in determination [NSW s 371]

A costs assessor may, for the purpose of correcting inadvertent errors, issue a replacement determination.

349.	Determination final [NSW s 372]

The only way in which a costs determination can be challenged is by way of review under Division 8 of this Bill.

350.	Costs of costs assessment [CNU] [MB s 1043]

This clause sets out that a costs assessor must determine the costs of a costs assessment. The clause also states the general rule for determining who is responsible for the payment of the costs. In essence, the client must may the costs of the assessment unless the legal costs are reduced by 15% or more or unless the costs assessor is satisfied that the law practice has failed to comply with Division 3.

Subdivision 5 — Review of determinations

351.	Definition

This clause defines "reviewer" for the purposes of subdivision 5.

352.	Application by party for review of determination [NSW s 373]

This clause sets out that a person dissatisfied by a decision of a costs assessor can apply for a review by a reviewer.

353.	Registrar for review of determination of costs of costs assessment [NSW s 373A]

This clause provides that a reviewer may apply for a review of a decision of a costs assessor made under clause 347.

354.	Conduct of review [NSW s 375]

This clause sets out the functions of a reviewer in reviewing a decision. In general terms the reviewer only considers the evidence provided to the original costs assessor.  However, the reviewer can receive other evidence.

355.	Relevant documents to be produced to [NSW s 376]

This clause provides that the reviewer can require the original costs assessor, the law practice and the client to produce documents.

356.	Effect of review on costs assessor's determination [NSW s 377]

On referral of a matter to a reviewer the original determination is suspended.

The reviewer may end the suspension if he or she affirms the original decision or in such other circumstances as the reviewer considers fit.

357.	Certificate as to determination [NSW s 378]

This clause provides for certificates of determination to be issued by reviewers.

358.	Recovery of costs of review [NSW s 379]

This clause states that a reviewer must determine the costs of a review and must, subject to this clause, make a decision about the payment of costs of the review.

359.	Reasons for determination [NSW s 380]

This clause provides that the reviewer must include reasons for decisions and provide such other information as is required by the Regulations.

360.	

Correction of error in determination [NSW s 381]

A reviewer may, for the purpose of correcting inadvertent errors, issue a replacement determination.

361.	Appeal against determination or decision [NSW s 382]

Appeals can be made under Subdivision 6 (clauses 362-366) but there can be no other appeal or review

Subdivision 6 — Appeals

362.	Appeal against decision of costs assessor as to matter of law [CNU] [NSW s 384]

This provides that appeals on grounds of law appeal from a decision of a costs assessor.  The Court may substitute its own decision or remit the decision to the costs assessor.

363.	Appeal against decision of costs assessor by leave [NSW s 385]

A party can, with the leave of the Court, appeal on the merits of a costs
decision.  Such appeals are governed by the rules of the relevant Court or Tribunal.

364.	Effect of appeal on application [NSW s 386]

Pending the outcome of an appeal under clause 363, a costs assessor, the relevant Court or Tribunal may suspend the operation of the costs assessors' determination.

365.	Assessor can be a party to appeal [NSW s 387]

The Supreme Court may decide that a costs assessor is a party to an appeal against a decision of a costs assessor.

Division 9 — Costs assessors

366.	Costs assessors [NSW s 390 & sch 5]

This clause provides that costs assessors are appointed by the Chief Justice, or the Chief Magistrate or the Law Society.  In making the appointments the Chief Justice, the Chief Magistrate and the Law Society can limit the terms of the appointment. Additionally, the Regulations may impose restrictions.

367.	Vacancy in office of cost assessor [NSW sch 5, clause 4]

This clause describes how an office of costs assessor becomes vacant.

368.	Confidentiality [NSW s 392]

This clause imposes a criminal penalty on a costs assessor who unlawfully discloses information obtained in connection with a costs assessment.  The maximum penalty for breach is 400 penalty units ($44,000) or imprisonment for 2 years.

Division 10 — Miscellaneous matters

369.	Protection from liability [NSW s 391]

This clause protects various officers from personal responsibility for things done or not done in good faith with the administration of Part 3.3.

370.	Referral for disciplinary action [CNU] [MB s 1043] [NSW s 393]

If, in dealing with a costs assessment, the costs assessor considers that a law practice has imposed legal costs that are grossly excessive, the costs assessor may refer the matter to the Statutory Supervisor.

371.	Application of Part to incorporated legal practices and multi-disciplinary partnerships [CNU] [MB s 1046]

Regulations may be made for the purpose of determining the extent to which Part 3.3 applies to incorporated legal practices and multi-disciplinary practices.  In the absence of any Regulations Part 3.3 applies to incorporated legal practices and multi-disciplinary practices.

372.	Imputed acts, omission or knowledge [CU] [MB s 1047]

This clause provides that things done or not done are by Australian legal practitioners and Australian registered foreign lawyers, as a general rule, are taken to be acts or commissions of the law practice for whom they were acting.

PART 3.4 — PROFESSIONAL INDEMNITY INSURANCE [MB Pt 9]

373.	Definition

This clause contains a definition of "approved".

374.	Purpose

This clause sets out the purposes of Part 3.4.

375.	Exemptions

This clause provides that the Regulations may exempt certain Australian legal practitioners from the insurance requirements.  Additionally, the Law Society may, subject to the Regulations, give exemptions.

376.	Law practice required to insure

This clause sets out the broad principle that before commencing practice in the Northern Territory a law practice must obtain insurance approved under clause 378.

377.	Professional indemnity schemes requirements

There is a requirement to obtain professional indemnity insurance that complies with the requirements contained in the Regulations.

378.	Professional indemnity insurance scheme

This clause sets out that the Law Society may enter into an agreement or arrangement for the operation of a scheme for the provision of professional indemnity insurance.

379.	Giving information to Law Society for insurance

This clause provides that the Law Society may, through the Chief Executive Officer of the Society, require a law practice to provide information necessary for the determination of insurance risks.  The maximum penalty for breach is 100 penalty units ($11,000).

This information can only be disclosed to the insurer or broker or as set out in clause 379(6) (under order of a court or for the purpose of the enforcement or investigation of criminal law).  The information cannot be disclosed for the purposes of the investigation of a disciplinary matter.  The maximum penalty for illegal disclosure is 400 penalty units ($44,000) or 2 years imprisonment.

380.	Continuing obligation for professional indemnity insurance

This clause provides that it is an offence for an Australian legal practitioner, as principal or employee, to fail to advise the Law Society if he or she becomes aware that the Australian legal practitioner has ceased to be covered by approved professional indemnity insurance.

PART 3.5 — FIDELITY COVER [MB Pt.8]

Division 1— Preliminary matters

381.	Purpose [NC] [MB s 801]

This clause states that the purpose of Part 3.5 to provide for a Fund to cover compensation for defaults of law practices in the Northern Territory.

382.	Definitions [NC; except CU as marked] [MB s 802]

This clause contains definitions of:

·	allow
·	capping and sufficiency provisions
·	claim
·	claimant
·	concerted interstate default
·	default
·	dishonesty
·	pecuniary loss
·	relevant jurisdiction

383.	Time of default [CU] [MB s 803]

This clause sets out the time when a default or omission has occurred.  When that fact is ascertained, the place of the default can then be determined for the purpose of working out which jurisdiction's law is to apply.

384.	Application of this Part [NC] [MB s 803A]

This clause provides that Part 3.5 does not apply to defaults by a law practice that consists of a barrister.

Division 2 — Fidelity Fund

385.	Establishment of Fidelity Fund [CNU] [MB s 804]

This clause provides that the Funds Management Committee (as established by clause 659) must establish and maintain a Legal Practitioners Fidelity Fund.  

386.	Financial management of Fidelity Fund

The clause also imposes on the Committee the duty to manage the Fund so that there is no need to impose a levy under Division 3 (clause 395).

387.	Directions about the prudential management of the Fidelity Fund

This clause provides that the Attorney-General may give directions to the Funds Management Committee about the prudential management of the Fidelity Fund.  These directions will provide for the financial management framework for the Fund.  This clause operates subject to clause 394.

388.	Determinations about funding from the Fidelity Fund

This clause provides for payments from the Fidelity Fund for the purposes of meeting the costs of administration of the Act incurred by the various regulatory bodies.

The Funds Management Committee is under a duty to determine (and make a recommendation to the Attorney-General) the amounts payable for the funding of regulatory activities.  In making its recommendations, the Committee is bound to ascertain the sufficiency of the Fund to meet contingent liabilities (for defaults) without the need for a levy under clause 395).

The Attorney-General may, subject to the regulations, make such funding decisions. However, in doing so, the Attorney-General must:

·	have regard to any recommendations made by the Funds Management Committee; and

·	determine that the Law Society receives an amount not less than the amount paid for practising certificates for the previous year.

389.	Payments into and out of the Fidelity Fund

This clause provides for the monies that comprise the Fidelity Fund and for the monies that may be paid out of the Fidelity Fund.

390.	

Insurance [CNU] [MB s 805]

This clause provides that the Funds Management Committee may arrange for the insurance of the Fidelity Fund.

391.	Borrowing [CNU] [MB s 806]

This clause provides that the Funds Management Committee cannot borrow money for the purposes of the Fidelity Fund.

Division 3 — Contributions and levies

392.	Deciding annual contribution [NT s.90A]

This clause provides for the setting of an annual contribution to the Fidelity Fund. This amount is set by the Funds Management Committee.

393.	Payment of annual contributions [NT s.90]

This clause provides for the payment of an annual amount into the Fidelity Fund by Australian legal practitioners.

394.	Imposition of levy [NT s.101]

This clause provides for the imposition of an additional levy if the Funds Control Committee is not in a position to meet its liabilities.  The levy cannot exceed the amount prescribed in the Regulations.

395.	Provisions about payment of contribution or levy [NT s. 101A]

This clause sets out that, for the purpose of paying the levy, Australian legal practitioners may be placed in different classes.

Division 4— Defaults to which this Part applies

396.	Relevant jurisdiction [CU] [MB s 807]

This clause sets out the rules for determining what is the relevant jurisdiction for an associate of a law practice that has led to a default by the law practice.  The clause differentiates between trust money received:

·	in Australia - in which case the relevant jurisdiction is the associate's home jurisdiction unless the associate was authorised to withdraw the trust money from the last trust account in which it was held - in which case the relevant jurisdiction is the jurisdiction in which the trust account was maintained;

·	outside Australia - the same as for above dot point excepting that the trust money must have gone into an Australian trust account.

Additionally, for trust property received in Australia or brought into Australia the relevant jurisdiction is the associate's home jurisdiction.

397.	Defaults to which this Part applies [CU] [MB s 808]

This clause provides that Part 3.5 applies to defaults of a law practice arising from an associate of a law practice if the Northern Territory is the 'relevant jurisdiction' as determined in accordance with clause 397.  It does not matter where the default occurs or that the default does not constitute an offence.

398.	Defaults relating to financial services or investments [CNU] [MB s 809]

This clause provides that, as a general rule, losses from defaults involving the provision of financial services, managed investment schemes and mortgage financing are not covered by the Fidelity Fund.

Losses arising from investments are only covered if the losses occurred as part of the ordinary course of legal practice.

Division 5— Claims about defaults

399.	Claims about defaults [CNU] [MB s 810 & s 815]

This clause provides that a person who suffers a pecuniary loss from a default may lodge with the Law Society a claim against the Fidelity Fund.  The Society must investigate such claims.

400.	Time limit for making claims [CNU] [MB s 811]

Claims against the Fidelity Fund must be made within 6 months of the default or within such further period permitted by the Law Society or, on appeal, the Supreme Court.  This clause operates subject to clause 403.

401.	Advertisements [CNU] [MB s 812]

This clause provides that the Law Society may, if it considers that there may have been a default by the law practice, publish information about the default and invite claims to be made by a fixed date.  The period must be at least 3 months and not more than 12 months.

402.	Time limit for making claims following advertisement [CNU] [MB s 813]

This clause provides that claims against the Fidelity Fund must be made within the time fixed by a notice under clause 401, or within such further period permitted by the Law Society or, on appeal, the Supreme Court.  This clause operates notwithstanding clause 400.

403.	Claims not affected by certain matters [CNU] [MB s 814]

This clause states that claims are not affected by any change of status of the law practice or an associate.

404.	Advance payments [CNU] [MB s 816]

This clause provides that the Law Society may make payments notwithstanding that it has not finalised its consideration of an application. Any decision of the Society to make or not make such a payment cannot be challenged. If a claim is eventually disallowed the monies paid must be repaid.

Division 6 — Determination of claims

405.	Law Society may determine claim [CNU] [MB s 817]

This clause sets out the Law Society must allow, disallow or partly allow or disallow claims. The clause sets out some principles on which a claim may be partly or wholly disallowed.

406.	Maximum amount allowable [CNU] [MB s 818]

This clause states that the amount must not exceed the claimant's pecuniary loss (subject that additional amounts can be paid by way of costs and interest as allowed under clauses 407 and 408. This clause operates subject to clause 418 which provides that a cap can be imposed by Regulation.

407.	Costs [CNU] [MB s 819]

This clause provides that a successful applicant is entitled to be paid his or her reasonable legal costs. These amounts are paid from the Fidelity Fund.

408.	Interest [CNU] [MB s 820]

This clause provides that a successful applicant is entitled to be paid interest on the amount payable.  The rate of interest shall be 5% unless some other rate is specified in the Regulations.  These amounts are paid from the Fidelity Fund.

409.	Reduction of claim because of other benefits [CNU] [MB s 821]

This clause provides that the amount payable can be reduced by other amounts that are payable.

410.	Subrogation [CNU] [MB s 822]

This clause provides that the Law Society may take action to recover monies from persons who have caused the default.

411.	Repayment of certain amounts [CNU] [MB s 823]

If the claimant, after receiving compensation from the Fidelity Fund, receives additional monies there is an obligation to repay the difference to the Fidelity Fund.

412.	Notice of delay in making decision [CNU] [MB s 824]

If a claim is not likely to be determined within 12 months, the Law Society must notify the applicant of the fact.  Reasons must be provided explaining the delay.

413.	Notice of decision [CNU] [MB s 825]

This clause provides that the Law Society must give written notice of decisions about claims.

414.	Appeal against decision on claim [CNU] [MB s 826]

This clause provides that a claimant may appeal to the Supreme Court against a decision of the Law Society to disallow a claim (in whole or part) or to reduce the amount otherwise payable.  The appeal must be lodged within 28 days of the decision.  On appeal the appellant must establish that it is not reasonably available from other sources.  Otherwise the Court may review the merits of the decision of the Society.

415.	Appeal against failure to determine claim [CNU] [MB s 827]

This clause provides that an appeal can be made to the Supreme Court against a failure of the Law Society to make a decision within the period of 12 months.  When such an appeal is made the Court may give directions for the expeditious determination by the Society and may order that interest be paid at a higher rate than that specified in clause 408 or in Regulations made for the purposes of that clause.

416.	Court proceedings [CNU] [MB s 828]

This clause provides that in Court proceedings under clause 410 or 414
evidence (such as an admission or confession) is admissible despite the fact that the person who provided the evidence is not a party to the proceedings.

Additionally, defenses that were available to a legal practitioner or other person are available to the Society.

Division 7— Payments from Fidelity Fund for defaults

417.	Payments for defaults [CNU] [MB s 829]

This clause provides that a claimant may direct that amounts payable from the Fidelity Fund may be paid to another person.

418.	Caps on payments [CNU] [MB s 830]

This clause provides that the Regulations may impose a maximum amount that may be paid out of the Fidelity Fund in respect of a successful claim.  However, the Funds Management Committee may pay higher amounts after taking account the position of the Fidelity Fund.

419.	Sufficiency of Fidelity Fund [CNU] [MB s 831]

This clause provides that the Law Society/Funds Management Committee may, if the Fidelity Fund is insufficient to meet its ascertained or contingent liabilities postpone payments, make partial payments and impose a levy under clause 394.

Division 8 — Claims by law practices or associates

420.	Claims by law practices or associates about defaults [CNU] [MB s 832]

This clause provides that a law practice or an associate of a law practice may make a claim under clause 399 if they have suffered a default because of the actions of another associate of the law practice.

421.	Claims by law practices or associates about notional defaults [CNU] [NC 833] [NSW s 459]

If a law practice or an associate of a law practice has compensated a person who has suffered a loss because of another associate of the law practice, the associate or the law practice may be compensated from the Fidelity Fund.

Division 9 — Defaults involving interstate elements

422.	Concerted interstate defaults [CU] [MB s 834]

This clause deals with defaults of 2 or more associates with one of the associates being a Northern Territory legal practitioner and the other practitioner being from another jurisdiction (meaning that both the Northern Territory Fidelity Fund and another jurisdiction's Fidelity Fund may also be liable).

In such cases the claims are to be treated as if the 2 or more Fidelity Funds are equally liable (despite the fact that the capping provisions may be such that the amounts payable in respect of each jurisdiction are not the same).  The amount payable in the Northern Territory will not exceed the cap set by clause 418.

423.	Defaults involving interstate elements if committed by one associate only [CU] [MB s 835]

This clause deals with defaults of one associate in 2 or more jurisdictions (meaning that both the Northern Territory Fidelity Fund and another jurisdiction's Fidelity Fund may also be liable).  In such cases the claims are to be treated as if the 2 or more Fidelity Funds are equally liable (despite the fact that the capping provisions may be such that the amounts payable in respect of each jurisdiction are not the same).  The amount payable in the Northern Territory will not exceed the cap set by clause 418.

Division 10 — Inter jurisdictional provisions

424.	Fidelity protocols [CNU] [MB s 836]

Regulations may be made permitting the Law Society or the Funds Management Committee to enter into protocols with other jurisdictions concerning Part 3.5 matters.

425.	Forwarding of claims [CNU] [MB s 837]

Claims made to the Law Society about defaults under corresponding laws should be forwarded by the Society to the relevant corresponding authority. If the Society receives such a claim from another jurisdiction it must treat the claim as if it has been properly made under Part 3.5.

426.	Investigation of defaults to which this Part applies [CNU] [MB s 838]

For claims that appear to have interstate elements, the Law Society may appoint corresponding authorities to act as agents for the Society.

427.	Investigation of defaults to which corresponding law applies [CNU] [MB s 839]

For claims arising out of events in the Northern Territory but which should be dealt with under a corresponding law the Law Society may act as agent for a corresponding authority.

428.	Investigation of concerted interstate defaults and other defaults involving interstate elements [CNU] [MB s 840]

In the case of concerted interstate defaults or interstate defaults by an associate the Law Society may appoint corresponding authorities as its agent or act as agent on behalf of corresponding authorities.

429.	Recommendations by Law Society to corresponding authorities [CNU] [MB s 841]

When the Law Society is acting as agent, it may make recommendations as to what should be the decision of the corresponding authority.

430.	

Recommendations to and decisions by Law Society after receiving recommendations from corresponding authority [CNU] [MB s 842]

When a corresponding authority is acting as agent for the Law Society, the Society may act in conformity with the recommendations made by the corresponding authority.

431.	Request to another jurisdiction to investigate aspects of claim [CNU] [MB s 843]

This clause permits the Law Society to request a corresponding authority to arrange for investigations. The results of such investigations can be used by the Society.

432.	Request from another jurisdiction to investigate aspects of claim [CNU] [MB s 844]

This clause permits the Law Society to act as agent on the request of a corresponding authority to arrange for investigations.

433.	Cooperation with other authorities [CNU] [MB s 845]

This clause permits the Law Society to cooperate with other persons or bodies with powers under corresponding laws.

Division 11 — Miscellaneous matters

434.	Interstate legal practitioner becoming authorised to withdraw from local trust account [NC] [MB s 846] [NSW s 472(1)&(2)]

This clause provides that an interstate legal practitioner who has become authorised to withdraw money from a local trust account must notify the Law Society in accordance with the Regulations and must make contributions to the Fidelity Fund.

435.	Application of Part to incorporated legal practices [NC] [MB s 847]

Regulations may be made for the purpose of applying the provisions of Part 3.5 to incorporated legal practices.

436.	

Application of Part to multi-disciplinary partnerships [NC] [MB s 848]

Regulations may be made for the purpose of applying the provisions of Part 3.5 to multi-disciplinary practices.

437.	Application of Part to Australian lawyers whose practising certificates have lapsed [NC] [MB s 849]

For the purposes of this Part, certain former Australian legal practitioners (i.e. persons who once had, but no longer have, a practising certificate) are deemed to remain as Australian legal practitioners. This does not apply if the person's practising certificate has been cancelled or if the renewal of it has been refused.

Additionally, this deeming lapses if a manager or receiver is appointed under Chapter 5 or if 6 months has elapsed since the person ceased to be an Australian legal practitioner or if the lawyer's application for the grant or renewal of a practising certificate is refused.

PART 3.6 — MORTGAGE PRACTICES AND MANAGED INVESTMENT SCHEMES

Division 1— Preliminary matters

438.	Definitions [NT s 84B, NSW s 477(1)]

This clause contains definitions for the purposes of Part 3.6

439.	Associate of a legal practitioner [NT s 84B(2)-(3), NSW s 477(2)-(3)]

This clause defines "associate of a legal practitioner" for the purposes of Part 3.6.

440.	Territory regulated mortgage [s 84C, NSW s 478]

This clause defines "Territory regulated mortgage" for the purposes of Part 3.6.

Division 2 — Conduct of mortgage practices

441.	Conduct of mortgage practices [NT s 84E, NSW s 479]

This clause provides that an Australian lawyer must not make or act in relation to a regulated mortgage unless the mortgage is a Territory regulated mortgage, a run-out mortgage or it forms part of a managed investment scheme operated by a responsible entity. In acting in relation to such mortgages the lawyer must comply with any requirements of the Corporations Act and ASIC.

442.	Nomination of practice as Territory mortgage practice [NT s84F, NSW s 480]

This clause provides for legal practices to nominate themselves (to the Law Society) as a Territory regulated mortgage practice.

443.	Requirement to notify Law Society of Territory regulated mortgages [NT s 84G, NSW s 481]

This clause makes it an offence to negotiate a regulated mortgage without having given a notice under clause 443.

444.	Legal practitioner to have fidelity cover in respect of regulated mortgages [s 84H, NSW s 482]

This clause requires a legal practitioner to have fidelity cover if they negotiate the making of a regulated mortgage.

445.	Limited claim against Fidelity Fund in respect of regulated mortgage [NT s 841]

Claims cannot be made against the Fidelity Fund for losses suffered through investments through a lawyer in a mortgage. This restriction does not apply if the law practice has failed to comply with clause 443.

446.	Notice of insurance arrangements for regulated mortgage [NT s 84J, NSW s 484]

This clause imposed on a law practice a requirement to provide certain information to clients (eg about insurance and about the inability to make claim against the Fidelity Fund).

447.	Failure to obtain fidelity insurance for regulated mortgage [NSW s 485]

This clause provides that the Law Society must not renew a person's practising certificate if the person does not have the relevant fidelity coverage.

Division 3 — Managed investment schemes

448.	Involvement of legal practitioners in managed investment schemes [NSW s 486]

This clause provides that a legal practitioner must provide notice to a client if the legal practitioner has a prescribed interest in the management investment scheme. "Prescribed interest" is defined in clause 448(7).

449.	Claims against Fidelity Fund relating to managed investment schemes connected with legal practitioners [NSW s 487]

No claims can be made against the Fidelity Fund where monies are entrusted to a legal practitioner are invested in a managed investment scheme.

450.	Transfer of mortgages to responsible entity [NSW s 488]

Mortgages in managed investment schemes cannot be transferred unless the lender or contributor has agreed to this occurring.

451.	Regulations relating to managed investment schemes [NSW s 489] 

Regulations can be made for the purpose of ensuring that monies in managed investment schemes are kept separate from the legal practitioner's practice.

Division 4 — Transitional arrangements for pre-existing mortgages

452.	Fidelity insurance for pre-existing regulated mortgage [NT s 84T]

This clause provides that the requirements for fidelity insurance do not apply to regulated mortgages created prior to 1 December 2002. However, this does not apply if money is advanced after the application date.

453.	Prohibited conduct in respect of run-out mortgage [NT s 84U]

This clause sets out what a legal practitioner must not do when acting for a lender or contributor.

454.	Substitution of lender or contributor under run-out mortgage [NT s 84V]

Despite clause 453, the law practice may substitute a leader or a contributor under a run-out mortgage.

455.	Limited claims against Fidelity Fund by substitute lender [NT s 84W]

A person substituted as a contributor or lender (as in clause 454) cannot claim against the Fidelity Fund.

Division 5 — Miscellaneous matters

456.	Law Society may require information about mortgage practices [NSW s 491]

This clause provides that the Law Society may require information from the Law Practice in respect of various matters relating to regulated mortgages.

457.	Indemnity insurance [NSW s 492]

Part 3.6 does not affect the terms of an approved policy of professional indemnity insurance.

458.	Law Society to disseminate information [NT s 84N]

The Law Society has a duty to disseminate information about the operation of Part 3.6.

459.	Secrecy provisions not affected [NT s 84Q]

This Bill does not prevent disclosure of information to ASIC.

460.	Regulations relating to Part [NSW s 493]

This clause provides for the making of regulations in respect of Part 3.6.

CHAPTER 4 — COMPLAINTS AND DISCIPLINE [pt 11]

PART 4. 1 — Preliminary matters

461.	Purposes of Chapter [NC] [MB s 1101, NSW s 494]

This clause sets out that the main purposes of Chapter 4 are to provide a nationally consistent scheme for professional standards, competence and honesty of legal practitioners, for redress for complaints against lawyers.

462.	Definitions [NC] [MB s 1102]

This clause contains definitions of:

·	complaint
·	conduct
·	disciplinary application
·	official complaint

463.	Application of Chapter to lawyers, former lawyers and former practitioners [NC] [MB s 1103]

This clause provides that Chapter 4 applies to current lawyers and former lawyers.

PART 4.2 KEY CONCEPTS [MB Pt11, Div 2]

464.	Unsatisfactory professional conduct [CU] [MB s 1104]

This clause defines 'unsatisfactory conduct'. It is conduct that, from the
perspective of a member of the public, is not of a standard of competence and diligence of a reasonably competent Australian legal practitioner.

See also clause 466 - which has the effect of deeming contraventions of the legislation and other matters as being 'unsatisfactory conduct'.

465.	Professional misconduct [CU (1); CNU (2)] [MB s 1105]

This clause defines 'professional misconduct'. It includes:

·	'unsatisfactory conduct' (as defined in clause 466) of an Australian legal practitioner involving a substantial or consistent failure

·	conduct (of any kind and in any context) that would justify a finding that the Australian legal practitioner is not a fit and proper person to engage in legal practice.

Additionally, See also clause 466 - which has the effect of deeming contraventions of the legislation and other matters as being 'professional misconduct'.

466.	Conduct capable of constituting unsatisfactory professional conduct or professional misconduct [CU] [MB s 1106]

This clause provides, for the purposes of clause 464 and 465 that contraventions of the legislation, excessive legal costs, serious offences, tax offences, offences involving dishonesty, conduct leading to insolvency, conduct leading to disqualification under the Corporations Act 2001 from managing a corporation are capable of being professional misconduct or unsatisfactory professional conduct.

PART 4.3 — APPLICATION OF THIS CHAPTER [MB Pt 11, Div 3]

467.	Practitioners to whom this Chapter applies [CNU] [MB s 1107]

This clause provides that Chapter 4 applies to all Australian legal practitioners.

468.	Conduct to which this Part applies — generally [CNU] [MB s 1108]

This clause identifies the conduct that is subject to Part 4.1. In general terms the conduct must occur in the Northern Territory. However, subject to appropriate agreements of clients, practitioners and other regulatory authorities, conduct occurring in another jurisdiction or outside Australia may be dealt with under Part 4.1. In some situations conduct occurring in the Northern Territory can be handled under a corresponding State or Territory law.

Additionally, there are some other clauses (eg clause 469) which describe conduct that is subject to Part 4.1 regardless of where it occurred.

469.	Conduct to which this Part applies — insolvency, serious offences and tax offences [CNU] [MB s 1109]

This states that certain conduct is subject to Part 4.1 regardless of where it occurred. This conduct includes serious offences, tax offences, offences involving dishonesty, conduct leading to insolvency, conduct leading to disqualification under the Corporations Act 2001 from managing a corporation. 

PART 4.4 — Complaints about Australian legal practitioners

470.	Complaints [NC] [MB s 1110]

This clause provides that complaints can be made under Part 4.1 in respect of conduct that is subject to Part 4.1.

471.	Making of complaints [NC] [MB s 1111 (1)]

This clause describes the persons and organisations by which complaints can be made (i.e. Law Society, Statutory Supervisor or any other person). The complaint must be in writing, must identify the complainant, if possible must identify the Australian legal practitioner and must describe the conduct.

472.	To whom complaint made [NC] [MB s 1111 (2)] [NSW s 505]

The general rule is that complaints must be made to the Law Society.

473.	Complaints made over 3 years after conduct concerned [NC] [MB s 1112]

As a general rule, a complaint cannot be dealt with if made 3 or more years after the conduct occurred.  However, the Law Society does have a limited discretion to deal with complaints outside of that time.

474.	Further information and verification [NC] [MB s 1113]

The Law Society may require a complainant to provide further information or verify the complaint by statutory declaration.

475.	Practitioner to be notified of complaint [NC] [MB s 1114, NSW s 508] 

The Law Society must give a copy of any complaint to the Australian legal practitioner in respect of whom the complaint has been made. However, this does not apply if the complaint is summarily dismissed (clause 478) or if the giving of the information may prejudice the investigation of the complaint or some other law enforcement action or subject the complainant to harassment or prejudice court proceedings.

476.	Submissions by practitioner [NC] [MB s 1115]

The Australian legal practitioner about whom a complaint has been made has a right to make a submission to the Law Society. The Society must consider any such submission before deciding on what action to take in respect of the complaint.

477.	Preliminary assessment [NSW s 510]

The Law Society, for the purpose of deciding whether to summarily dismiss a complaint (clause 478), may conduct a preliminary assessment. For that purpose an investigator may be appointed. Such an investigator has the powers set out in Chapter 6 (except Part 6.3) in respect of the investigation of complaints.

478.	Summary dismissal of complaints [NC] [MB s 1116]

This clause sets out the circumstances in which the Law Society may dismiss a complaint. These circumstances include:

·	where the view is taken that the complaint is vexatious, misconceived, frivolous or lacking in substance;

·	where the Society is of the view that it is the public interest to dismiss the complaint

479.	Withdrawal of complaints [NC] [MB s 1117]

This clause sets out the circumstances in which a complaint can be withdrawn. In brief, complainants have the right to withdraw complaints. However:

·	a complaint cannot be withdrawn if it has reached the Disciplinary Tribunal

·	the Law Society may make a complaint about the same matter as has been withdrawn.

PART 4.5 — Mediation [MB pt 11, Div 5]

480.	Consumer dispute [NC] [MB s 1119]

This clause defines "consumer disputes". They are disputes that do not involve an issue of professional misconduct or unsatisfactory professional conduct.

481.	Mediation of complaint involving consumer dispute solely [NC] [MB s 1120]

If a complaint appears to the Law Society to be solely a consumer dispute, the Law Society may suggest to the parties that they enter into a process of mediation.

482.	Mediation of hybrid complaint [NC] [MB s 1121]

If a complaint involves both a consumer dispute and a conduct matter, the Law Society may refer the consumer aspect to mediation but must continue on with the disciplinary action.

483.	Compulsory mediation of consumer dispute [NC] [MB1121A}[NSW s 517]

This clause may require an Australian legal practitioner and a complainant to enter into mediation. Failure of the Australian legal practitioner to comply with such a requirement may of itself constitute unsatisfactory conduct or professional misconduct.

484.	Nature of mediation [NC] [MB s 1121A] [NSW s 519]

This clause provides that mediation is not limited to passive mediation but may include the provision of preliminary assistance such as informal advice about rights and obligations.

485.	Facilitation of mediation [NC] [MB s 1122]

If the parties are agreeable to mediation, the Law Society may facilitate such a mediation.

486.	List of mediators [NSW s 520]

This clause provides that the Law Society must provide a list of prescribed mediators (noting that clauses 481-484 deal with the activities of such mediators).

487.	Confidentiality of mediation process [NC] [MB s 1123 NSW s 522]

This clause provides that evidence and documents produced for or in relation to a mediation are not admissible (except if an agreement is reached during the mediation).

PART 4.6 — Investigation of complaints [Pt 11, Div 6]

488.	Complaints to be investigated [NC] [MB s 1125]

This clause provides that the Law Society must investigate each complaint in accordance with Chapter 6.  However, Chapter 6 does not apply to the extent that the complaint has been resolved or finalised in some other way.

489.	Consultation and cooperation on complaints [NSW s 528]

This clause permits the Law Society to consult and cooperate (and exchange information) with corresponding authorities of other jurisdictions.

490.	Monitoring by Statutory Supervisor of conduct of investigation [NSW s 529]

The Statutory Supervisor must monitor investigations by the Law Society. The Statutory Supervisor may require that the Law Society report on the progress of investigations.

491.	Appointment of investigator [NC] [MB s 1126]

This clause provides that the Law Society may appoint investigators.

492.	Application of Chapter 6 [NC] [MB s 1127]

This clause provides that Chapter 6 applies to investigations under Part 4.6.

493.	Application for cost assessment [NC] [MB s 1128, NSW s 533]

This clause provides that the Law Society may, in the course of investigating a complaint, refer the matter for costs assessment under Part 3.3, Division 8. This can occur despite the fact that the assessment may take place outside the time requirements that otherwise apply.

494.	Conduct that may be investigated [NSW s 534]

If during the investigation of a complaint other matters arise such matters may be included in the investigation. The affected Australian legal practitioner must be informed of the extension of the investigation as soon as is practicable.

495.	Modified complaints [NSW s 535]

This clause provides that the Law Society may modify a complaint in the course of investigating the initial allegation. In doing this the Society must consult with the original complainant.

PART 4.7 — DECISIONS OF LAW SOCIETY [MB Pt11, Div 7]

496.	Decision after investigation [NC] [MB s 1129]

This clause sets out what the Law Society must do on completing an investigation. It must either commence proceedings before a Disciplinary Tribunal or dismiss the complaint or summarily conclude the matter by imposing a fine or a reprimand. This is all subject to clause 479 (withdrawals).

497.	Decision without investigation [NSW s 538]

This clause sets out the circumstance in which the Law Society may refer a matter to the Disciplinary Tribunal without commencing or completing an investigation. In essence this may occur where the Society is of the view that there is a reasonable likelihood that the Disciplinary Tribunal will find that the Australian legal practitioner has engaged in unprofessional conduct or professional misconduct.

498.	Dismissal of complaint [NC] [MB s 1130, NT s 50(3)]

This clause sets out the circumstances in which the Law Society may dismiss a complaint after completing an investigation. This is where the view is taken that the complaint is vexatious, misconceived or frivolous or there is no reasonable likelihood that the Australian legal practitioner will be found guilty by the Disciplinary Tribunal or where the Society is of the view that it is the public interest to do so.

499.	Summary conclusion of complaint procedure by fine or reprimand [NC] [MB s 1131]

This clause sets out that the Law Society may summarily impose a fine or reprimand rather than refer the complaint to the Disciplinary Tribunal. It may do this by referring the matter to its Complaints Committee. This can occur if the Society has completed an investigation, is satisfied that the Disciplinary Tribunal would find that the Australian legal practitioner guilty of professional misconduct or unprofessional conduct and is also satisfied that the Australian legal practitioner is generally competent and diligent and is not subject to other complaints.

It should be noted that the Law Society operates a complaints system under its own rules - and that this system is largely unregulated by legislation. Instead the Society's own internal rules apply.

500.	Record of decision [NC] [MB s 1132]

This clause provides that the Law Society must keep a record of its decisions in respect of complaints.

501.	Reasons to be provided to complainant and practitioner [NC] [MB s 1133]

The Law Society must provide a statement of reasons in respect of respect of the decisions it makes concerning complaints.

PART 4.8 — IMMEDIATE SUSPENSION OF LOCAL PRACTISING CERTIFICATE

502.	Immediate suspension of local practising certificate [NSW s 548]

For very serious complaints the Law Society may suspend an Australian legal practitioner's practising certificate with immediate effect.

503.	Other powers to suspend not affected [NSW s 550]

This clause provides the other powers in the legislation concerning suspensions of practising certificate are not affected by Part 4.8.

PART 4.9 — General procedural matters [MB Pt11, Div 8]

504.	Rules of procedural fairness [NC] [MB s 1134]

Subject to the provisions of this Bill, the rules of procedural fairness (as laid down by the Courts) apply to the investigation of complaints and the procedures of the Law Society.

505.	Duty to deal with complaints efficiently and expeditiously [NC] [MB s 1135]

This clause that the Law Society has a duty to deal with complaints efficiently and expeditiously.

PART 4.10 — Appeals against Law Society decisions

506.	Appeals [NSW s 549]

An Australian legal practitioner may appeal to the Supreme Court concerning a decision of the Statutory Supervisor or the Law Society to immediately suspend a practising certificate or to dismiss a complaint (as the case may be).

507.	Hearing procedures

This clause provides that hearings are to occur as rehearings of the matters and that the Disciplinary Tribunal is bound by the rules of evidence.

508.	Parties

This clause sets out the parties to an appeal.

509.	Hearing may be closed to the public

This clause provides that hearings are, as a general rule, open to the public.  However, the Disciplinary Tribunal, in dealing with appeals, may close proceedings to the public. See also clause 523 regarding other hearings by the Disciplinary Tribunal.

510.	Appeal may be withdrawn or discontinued

This clause provides that appeals may be withdrawn or discontinued by the person who commended the appeal.

511.	Decision on appeal

This clause sets out the decisions that can be made by the Disciplinary
Tribunal following the hearing of an appeal against a decision of the Law Society.

512.	Costs of appeal

This clause sets out that the Disciplinary Tribunal has a discretion regarding the making of costs orders.

Division 2 - Appeals to the Supreme Court

513.	Appeals

This clause provides for appeals to the Supreme Court against decisions of the Law Society under clause 502 and the Disciplinary Tribunal (regarding appeals referred to in clause 511).

514.	Decision on appeal

This clause sets out what the Supreme Court may decide following an appeal against the immediate suspension of a practising certificate or to dismiss a complaint (as the case may be).

PART 4.11 — Proceedings in Disciplinary Tribunal for DISCIPLINARY applications [MB Pt 11, Div 9]

515.	Starting proceedings [NC] [MB s 1137, NSW s 551]

This clause provides how the Law Society is to commence proceedings before the Disciplinary Tribunal.

516.	Time for starting proceedings [NSW s 552]

As a general rule proceedings before the Disciplinary Tribunal must be
commenced within 6 months of the Law Society deciding that proceedings should be commenced. However, on application of the Law Society the Disciplinary Tribunal can extend that time.

517.	Hearings [NC] [MB s 1138]

This clause provides that the Disciplinary Tribunal must conduct a hearing in respect of each allegation.

518.	Joinder [NC] [MB s 1139]

The Disciplinary Tribunal may order that one or more disciplinary actions against 2 or more lawyers be held together.

519.	Variation of disciplinary application [NC] [MB s 1140]

The Disciplinary Tribunal may either of its own volition or on application vary the application by adding or omitting allegations.

520.	Nature of allegations [NC] [MB s 1141]

This clause provides that a disciplinary application cannot be challenged simply because the allegations contained in it do not match the original complaint.

521.	Rules of evidence [NC] [MB s 1143]

This clause provides that the Disciplinary Tribunal is bound by the rules of evidence.

522.	Parties [NC] [MB s 1144]

This clause provides that the parties to a disciplinary proceeding are the Law Society and the Australian legal practitioner. The original complainant is entitled to appear in respect of compensation matters and such other matters as permitted by the Disciplinary Tribunal.

523.	Public hearings [NC] [MB s 1145]

Proceedings before the Disciplinary Tribunal are to be open to the public except if closed by the Disciplinary Tribunal. Such closure can only occur if in the public interest because of the subject matter of the hearing or the nature of the evidence.

524.	Power to disregard procedural lapses [NC] [MB s 1146]

The Disciplinary Tribunal may order that a procedural failure of the Law Society may be disregarded if satisfied that the parties have not been prejudiced.

525.	Determinations of Disciplinary Tribunal [CNU] [MB s 1147]

This clause states that, on the Disciplinary Tribunal making a finding that an Australian legal practitioner has been guilty of unprofessional conduct or professional misconduct, the Disciplinary Tribunal may make such orders as it considers appropriate. 

These orders may include removing the Australian legal practitioner's name from the roll, suspension or cancellation of a practising certificate, imposing conditions on the practising certificate or publicly or privately reprimanding the Australian legal practitioner or impose fines of up to 100 penalty units ($11,000). A range of other potential orders is also set out in this clause. Similar orders can be made in respect of interstate Australian legal practitioners.

526.	Interlocutory and interim orders [NC] [MB s 1148]

This clause provides that the Disciplinary Tribunal may make interlocutory or interim orders.

527.	Consent orders [NSW s 564]

This clause provides that the Disciplinary Tribunal may make consent orders without conducting or completing a hearing. This can only occur with the consent of the relevant Australian legal practitioner.

528.	Compliance with determinations and orders [NC] [MB s 1149]

This clause sets out various obligations of regulatory bodies to do what is necessary for the implementation of orders of the Disciplinary Tribunal. This includes an obligation of the Law Society to notify interstate bodies.

529.	Costs [NC] [MB s 1150]

This clause provides that as a general rule an Australian legal practitioner found guilty of unprofessional conduct or professional misconduct must pay the costs of the Law Society and the complainant. In some cases a costs order can be made against an Australian legal practitioner despite being found not guilty (eg if proceedings were commenced because of a failure of the Australian legal practitioner to cooperate). The Law Society may also be ordered to pay costs.

530.	Notice of decision [NC] [MB s 1151]

This clause provides that the applicant (eg Law Society) must give to the complainant written notice of the decision of the Disciplinary Tribunal (except where the complaint is an official complaint).

531.	Early termination of proceedings before Disciplinary Tribunal [NSW 568]

Proceedings before the Disciplinary Tribunal can only be terminated with the approval of the Disciplinary Tribunal which can only be given if the continuation of proceedings is not warranted in the public interest.

532.	Other remedies not affected [NC] [MB s 1152]

This clause provides that nothing in Part 4.11 affects any other remedy of the complainant.

533.	Appeal against Disciplinary Tribunal orders

This clause provides for appeals against decisions of the Disciplinary Tribunal under clause 525.

Part 4.12 — Compensation [MB Pt 11, Div 10]

534.	Compensation orders [NC] [MB s 1154]

This clause contains a definition of compensation order. Such orders compensate complainants for losses suffered because of conduct that is the subject of the complaint. The compensation is one or other of an order that costs are not payable or may be recovered, or that a lien be discharged or that there be monetary compensation.

535.	Prerequisites to making of compensation orders [NC] [MB s 1154]

A compensation order can only be made if the complainant has suffered loss and it is in the interests of justice that such an order be made. Amounts that have been ordered by a court or payable from the Fidelity Fund must be discounted. The maximum amount is $10,000 however the parties can agree to a higher figure.

536.	Making of compensation orders [NC] [MB s 1156]

The Law Society can make a compensation order before commencing proceedings in the Disciplinary Tribunal if satisfied that the Australian legal practitioner is likely to found guilty of unprofessional conduct or professional misconduct.

The Disciplinary Tribunal can make a compensation order if the Australian legal practitioner has been found guilty of unprofessional conduct or professional misconduct.

537.	Effect of compensation order [NC] [MBs 1554(3) & (4)]

A compensation order remains effective even though there is an appeal against it. Additionally, a compensation order made after a court order (for payment of costs) overrides such a court order.

538.	Enforcement of compensation orders [NC] [MB s 1157]

Compensation orders can be enforced as if they are orders of the Local Court.

539.	Other remedies not affected [NC] [MB s 1158]

Compensation orders to not affect other remedies however a complainant cannot double dip for compensation.

PART 4.13 — Publicising disciplinary action [MB Pt 11, Div 11]

540.	Disciplinary action [CNU] [MB s 1159]

This clause contains a definition of "disciplinary action" for the purposes of Part 4.13.

541.	Register of Disciplinary Action [CNU] [MB s 1160]

This clause provides that the Law Society is to maintain a Register of Disciplinary Action. The Register must be published (on the internet) and may be provided to members of the Society and the public by other means. It must contain details of all disciplinary action taken after the commencement of this Bill. However, the Register may contain details of earlier disciplinary action.

542.	Other means of publicising disciplinary action [CNU] [MB s 1161]

This clause provides that the Law Society may, in addition to the publications referred to in clause 541 publicise disciplinary action in such other ways as the Society considers appropriate.

543.	Quashing of disciplinary action [CNU] [MB s 1162]

If disciplinary action is quashed the details must be removed from the Register.

544.	Liability for publicising disciplinary action [NC] [MB s 1163]

Persons ("protected persons") involved in the publication of decisions are protected from liability. Such persons include the Law Society, the person who keeps the Register and internet providers.

545.	Disciplinary action taken because of infirmity, injury or illness [CNU] [MB s 1164]

This clause sets out special rules concerning the publication of disciplinary decisions based on matters arising from infirmity, injury or mental or physical injury.

546.	Division subject to secrecy and non —disclosure orders [CNU] [MB s 1165]

This clause sets out the relationship between Part 4.13 and other provisions of the Act.

PART 4.14 — Inter jurisdictional provisions [MB pt 11, Div 12]

547.	Cross-border protocols [CNU] [MB s 1166]

This clause provides that the Law Society may enter into protocols with corresponding authorities relating to the investigation of complaints. Such a protocol is ineffective unless it is contained in or identified in Regulations.

548.	Request to another jurisdiction to investigate complaint [CNU] [MB s 1167]

This clause states that the Law Society may request a corresponding authority to investigate complaints.

549.	Request from another jurisdiction to investigate complaint [NC] [MB s 1168]

This clause states that the Law Society may be requested by a corresponding authority to investigate complaints. The Law Society may conduct such an investigation.

550.	Sharing of information with corresponding authorities [CNU] [MB s 1169, NSW s 586]

This clause provides that the Law Society may enter into arrangements for providing information with corresponding authorities.

551.	Co-operation with corresponding authorities [CNU] [MB s 1170, NSW s 587]

This clause provides that, in dealing with complaints or conducting an
investigation, the Law Society may consult and cooperate with other regulatory authorities inside or out of Australia.

552.	Compliance with orders made under corresponding laws [CNU] [MB s 1171]

This clause imposes a duty on regulatory and other bodies to implement decisions made under corresponding Acts.

553.	Other powers or functions not affected [CNU] [MB s 1172]

This clause provides that nothing in Part 4.14 affects any other powers or functions of a person or body.

PART 4.15 — Miscellaneous matters [MB Pt11, Div 13]

554.	Jurisdiction of Supreme Court [NC] [MB s 1173]

This clause provides that the inherent powers of the Supreme Court cover interstate legal practitioners engaged in legal practice in the Northern Territory and are not affected by anything in Chapter 4.

555.	Information about complaints procedure [NC] [MB s 1174, NSW s 593(3)]

This clause imposes on the Law Society a duty to publicise information relating to the operation of Chapter 4.

556.	Contravention of orders [NC] [MB s 1175]

This clause provides that a failure to comply with a disciplinary order is capable of constituting professional misconduct or unprofessional conduct.

557.	Performance criteria [NC] [MB s 1176]

This clause provides that the Law Society must develop performance criteria for the handling of complaints.

558.	Reports to Attorney-General [NC] [MB s 1177]

This clause provides that the Law Society must submit reports to the Attorney-General about the handling of complaints.

559.	Effect of other proceedings [NSW s 600]

This clause provides that a complaint can be dealt with under this Act even if the same matter might be or is the subject of criminal proceedings.

560.	Protection from liability [NC] [MB s 1179]

This clause protects from liability persons involved in the disciplinary process.

561.	Non-compellability of certain witnesses [NC] [MB s 1180]

This clause provides that protected persons, as referred to in clause 560 cannot be compelled to give evidence in any legal proceedings, including proceedings before the Disciplinary Tribunal.

562.	Undertakings by Law Society and Statutory Supervisor regarding privileged or confidential information [NSW s 605]

This clause provides that the Law Society and the Statutory Supervisor may give undertakings about the non disclosure of information.

563.	Confidentiality of client communications [NC] [MB s 1181]

This clause provides that an Australian legal practitioner must answer questions and provide information despite any duties of confidentiality.

564.	Claims of privilege [NC] [MB s 1182]

If, in the course of investigation or proceedings, a person claims privilege the Law Society or the Disciplinary Tribunal may require the disclose the information. However, if this results in information adverse to the interests of that person no questions or answers may be used in connection with proceedings relating to a complaint or report or disclosure under clause 704.

565.	Waiver of privilege or duty of confidentiality [NC] [MB s 1183] 

Professional legal privilege is waived if a client makes a complaint against an Australian legal practitioner. This is limited so as to permit the Australian legal practitioner to disclose information necessary for the investigation of the complaint.

CHAPTER 5 — EXTERNAL INTERVENTION [MB Pt 12]

Part 5.1 — Preliminary matters 

566.	Purposes of Chapter [NC] [MB s 1201]

This clause sets out that the main purpose of Chapter 5 is to provide a range of options for external intervention into the affairs of law practice in order to protect the interests of the general public, clients and lawyers.

567.	Interpretation [CU] [MB s 1202]

This clause contains definitions of:

·	external intervener
·	external intervention
·	regulated property

568.	Application of Chapter to barristers [NSW s 612]

Chapter 5, except for Parts 5.3 and 5.5, applies to barristers.

569.	Application of Chapter to Australian-registered foreign lawyers [CU] [MB s 1203]

Chapter 5, with necessary word changes, applies to Australian-registered foreign lawyers.

570.	Application of Chapter to other persons [CU] [MB s 1204]

Chapter 5, with necessary word changes, applies to former law practices and executors, administrators and liquidators (and the like) of law practices.

PART 5.2 — Initiation of external intervention [MB Pt 12, Div 2]

571.	Circumstances warranting external intervention [CU] [MB s 1205]

This clause sets out the various circumstances in which external intervention may take place. These range from a death, imprisonment or insolvency of a legal practitioner, the winding up of law practice partnership, trust account problems or ceasing to engage in legal practice.

572.	Determination regarding external intervention [CU] [MB s 1206]

This clause provides that on the Law Society becoming aware that there is a ground for external intervention (as described in clause 573), the Society may decide to appoint a supervisor of trust money, a manager or a receiver.

PART 5.3 — Supervisors of trust money

573.	Appointment of supervisor of trust money [CU] [MB s 1207]

This clause provides for the appointments of supervisors of trust monies by the Law Society.

574.	Notice of appointment [CU] [MB s 1208]

This clause provides for the service of a notice of appointment on the law practice, on any other person operating the trust accounts, any external examiner (under Part 3.1), any relevant ADI and any other person that the Society thinks should be served with the notice. The clause also sets out the requirements for the contents of the notice. These notices must include an information notice (dealing with rights of appeal).

575.	Effect of service of notice of appointment [CU] [MB s 1209]

This clause states that the effect of the service of a notice on the ADI is that the ADI cannot permit dealings with trust monies except with the approval of the supervisor of trust money. Similarly with anyone else who may have been able to deal with the trust money of the law practice.

576.	Role of supervisor of trust money [CU] [MB s 1210]

This clause sets out that the role of the supervisor of trust accounts is to receive trust moneys and to open and close trust accounts. The supervisor has no role in the management of the law practice except to the extent necessary in respect of trust monies.

577.	Records of and dealing with trust money of law practice under supervision [CU] [MB s 1211]

The supervisor of trust monies must keep separate records to those maintained prior to his or her appointment. Regulations can also be made setting out the manner of maintaining records.

578.	Termination of supervisor's appointment [CU] [MB s 1212]

This clause sets out how an appointment of a supervisor ends.

PART 5.4. — Managers [MB Pt 12, Div 4]  

579.	Appointment of manager [CU] [MB s 1213]

This clause provides for the appointments of managers of law practices by the Law Society.

580.	Notice of appointment [CU] [MB s 1214]

This clause provides for the service of a notice of appointment on the law practice, on any other person operating the trust accounts, any external examiner (under Part 3.1), any relevant ADI and any other person that the Society thinks should be served with the notice. The clause also sets out the requirements for the contents of the notice. These notices must include an information notice (dealing with rights of appeal).

581.	Effect of service of notice of appointment [CU] [MB s 1215]

This clause states that the effect of the service of a notice on the ADI is that the ADI cannot permit dealings with trust monies except with the approval of the supervisor of trust money. Similarly with anyone else who may have been able to deal with the trust money of the law practice.

Additionally, a legal practitioner associate mentioned in the notice of
appointment cannot participate in the affairs of the law practice unless under the direct supervision of the manager.

582.	Role of manager [CU] [MB s 1216]

This clause sets out the role of the manager. This includes operating the law practice's business and winding up the affairs of the practice.

583.	Records and accounts of law practice under management and dealings with trust money [CU] [MB s 1217]

The manager must keep separate records to those maintained prior to his or her appointment. Regulations can also be made setting out the manner of maintaining records.

584.	Deceased estates [CU] [MB s 1218]

In relation to deceased estates this clause sets out that the manager must cooperate with the legal personal representative of the deceased legal practitioner. A manager can also be appointed (under a will or under the Administration and Probate Act) as the legal personal representative.

585.	Termination of manager's appointment [CU] [MB s 1219]

This clause provides for the end of a manager's appointment.

PART 5.5 — Receivers [MB Pt 12, Div 5]

586.	Appointment of receiver [CU] [MB s 1220]

This clause provides for the appointment of receivers of law practices.

587.	Notice of appointment [CU] [MB s 1222]

This clause provides for the service of a notice of appointment on the law practice, on any other person operating the trust accounts, any external examiner (under Part 3.1), any relevant ADI and any other person that the Society thinks should be served with the notice. The clause also sets out the requirements for the contents of the notice. These notices must include an information notice (dealing with rights of appeal).

588.	Effect of service of notice of appointment [CU; except NC (5) (7)] [MB s 1223]

This clause states that the effect of the service of a notice on the ADI is that the ADI cannot permit dealings with trust monies except with the approval of the supervisor of trust money. Similarly with anyone else who may have been able to deal with the trust money of the law practice.

Additionally, a legal practitioner associate mentioned in the notice of appointment cannot participate in the management of the affairs of the law practice.

589.	Role of receiver [CU] [MB s 1224]

This clause sets out that the roles of the receiver are to deal with the regulated property of the law practice and to wind up/terminate the affairs of the law practice. However, the receiver may be authorised to continue the law practice's legal practice.

590.	Records and accounts of law practice under receivership and dealings with trust money [CU] [MB s 1225]

The receiver must keep separate records to those maintained prior to his or her appointment. Regulations can also be made.

591.	Power of receiver to take possession of regulated property [CU] [MB s 1226]

This clause permits the receiver to take possession of regulated property.

592.	Power of receiver to take delivery of regulated property [CU] [MB s 1227]

This clause permits the receiver to take delivery of regulated property that may be in the hands of another person. It is an offence for such other person to not deliver the property.

593.	Power of receiver to deal with regulated property [CU] [MB s 1228]

This clause states that the receiver may deal with regulated property.

594.	Power of receiver to require documents or information [CU] [MB s 1229]

This clause sets out gives the receiver the power to require the provision of documents and information. It is an offence to fail to comply with any such requirement.

595.	Examinations [CU] [MB s 1230]

This clause permits the Supreme Court to order, on application of a receiver, that an associate or former associate of a law practice appear before the court for examination about the regulated property of the law practice.

596.	Lien for costs on regulated property [CU] [MB s 1231]

This clause provides that a receiver may disregard a lien for costs over
regulated property from a law practice or a legal practitioner associate if the law practice or the associate does not provide the information required by this clause.

597.	Regulated property not to be attached [CU] [MB s 1232]

This clause provides that regulated property is not liable to any legal process (in the way of debt recovery against the law practice).

598.	Receiver may recover money paid away in bets [NC] [MB s 1233]

This clause provides that moneys paid away in bets can be recovered.

599.	Recovery of regulated property if there has been breach of trust etc [CU] [MB s 1234]

If regulated property is unlawfully transferred to a person the receiver is entitled to recover the property if that person did not provide any consideration for the property or was aware that the transfer of the property was done in breach of trust, improperly or unlawfully.

600.	Improperly destroying property etc [CNU] [MB s 1235]

This clause makes it an offence to destroy, conceal etc property with the view of defeating the operation of Division Part 5.5.

601.	Deceased estates [CU] [MB s 1236]

In relation to deceased estates this clause sets out that the receiver must cooperate with the legal personal representative of the deceased legal practitioner. A receiver can also be appointed (under a will or under the Administration and Probate Act) as the legal personal representative.

602.	Termination of receiver's appointment [CU] [MB s 1237A]

This clause provides for the end of a receiver's appointment.

PART 5.6 - GENERAL MATTERS [MB Pt 12, Div 6]

603.	Conditions on appointment of external intervener [CU] [MB s 1238]

This clause provides that the appointment of an external intervener
(supervisor, manager or receiver) is subject to any conditions that may be imposed by the Law Society.

604.	Status of acts of external intervener [CU] [MB s 1239]

Acts and omissions of an external intervener are taken to be the acts and omissions of the law practice, however, associates of the law practice have no personal liability in respect of them.

605.	Eligibility for reappointment or authorisation [CU] [MB s 1240]

Persons appointed as external interveners may be re-appointed.

606.	Appeal against appointment [CU] [MB s 1241]

This clause provides that appeals against the appointment of an external intervener can be made by the law practice, an associate of the law practice, a person authorised to operate a trust account and any other person adversely affected by the appointment.

607.	Directions of Supreme Court [CU] [MB s 1242]

This clause provides that, on application, the Supreme Court may give directions in respect of the powers, duties or functions of external interveners.

608.	Manager and receiver appointed for law practice [CU] [MB s 1242A]

Where, for a law practice, there is both a manager and a receiver, any decision of a receiver will prevail.

609.	Requirement for ADI to disclose information [CU; except (2) NC] [MB s 1243]

This clause provides that an external intervener may require an ADI to disclose various information and make copies of documents.

610.	Fees, legal costs and expenses [CU] [MB s 1244]

This clause provides for the fees, legal costs and expenses that an external intervener is entitled to be paid. If the law practice cannot pay the expenses, such monies must be paid by the Fidelity Fund with the Law Society having the right (on behalf of the Fidelity Fund) to recovery such monies from the law practice.

611.	Reports by external intervener [CU] [MB s 1245]

This clause provides for the reports that must be made by external interveners as part of the intervention.

612.	Report to Law Society of disciplinary matters [NSW s 654]

If an external intervener becomes aware of professional misconduct or
unprofessional conduct, it must refer the matter to the Law Society (so that the Society may consider whether to take disciplinary action).

613.	Confidentiality [CU] [MB s 1246]

This clause makes it an offence for an external intervener to illegally disclose information. The maximum penalty for breach is 400 penalty units ($44,000) and/or 2 years imprisonment.

614.	Provisions relating to requirements under this Part [NC] [MB s.1 246A]

This clause provides that an external intervener has access to documents regardless of any lien that is held over the documents.

615.	Obstruction of external intervener [NC] [MB  s.1246B]

This clause makes it an offence to obstruct an external intervener. The
maximum penalty for breach is 100 penalty units ($11,000) and/or 6 months imprisonment.

616.	Protection from liability [CU] [MB s 1247]

This clause provides that the Law Society and external interveners are not liable for acts and omissions done in good faith.

CHAPTER 6 — INVESTIGATORY POWERS

PART 6.1 — Preliminary matters [MB Pt 15, Div 1]

617.	Purpose of Chapter [NC] [MB s 1501]

The clause sets out that the purpose of Part 6.1 is to provide general powers for investigators of the purposes of Part 2.6 (audits of incorporated legal practices), 3.1 (trust accounts investigations) and Chapter 4 (complaints and discipline).

618.	Definitions [NC] [MB s 1502]

This clause contains definitions of:

·	complaint investigation
·	ILP compliance audit
·	investigator
·	trust account examination
·	trust account investigation

PART 6.2 — Requirements relating to documents, information and other assistance [MB Pt 15, Div2]

619.	Application of Part [NC] [MB s 1503]

This clause provides that Part 6.2 (dealing with the production of documents and associated matters) applies to trust account investigations and examinations, complaint investigations and compliance audits.

620.	Requirements for trust account investigations and  examinations and ILP compliance audits [NC] [MB s 1504]

Investigators may require the production of documents for the purposes of a trust account investigation or compliance audit.

621.	Requirements investigations under Chapter 4 [NC] [MB s 1505]

This clause provides that for the purposes of investigating complaints, an investigator may require the production of specified documents, written information or cooperation. Similarly in respects of associates and others (such as financial institutions). Failure to comply is an offence with a maximum penalty of 6 months or 100 penalty units ($11,000).

622.	Provisions relating to requirements under this Part [NC] [MB s 1506]

This clause provides that a requirement to produce a document is not affected by the fact that a law practice may have a lien over the document.

This clause also provides that the Law Society may (or must at the direction of the Statutory Supervisor) suspend a practising certificate if a legal practitioner fails to comply with a requirement under Part 6.2.

PART 6. 3 — Entry and search of premises [MB Pt 15, Div 3]

623.	Application of Part [NC] [MB s 1507]

This clause states that Part 6.3 (dealing with search and entry) applies to trust account investigations and examinations, complaint investigations and compliance audits.

624.	Investigator's power to enter premises [NC] [MB s 1508]

This clause provides:

·	for trust account investigations - that an investigator may enter premises (unless residential) without a search warrant. Residential premises may be entered with consent or with a warrant or if the investigator on reasonable grounds thinks that this is necessary to prevent the destruction or interference with materials;

·	for complaint investigations - that the investigator may enter premises with consent or with a search warrant.

625.	Search warrants [NC] [MB s 1509]

This clause provides that an investigator may apply for a search warrant, which can only be issued if the magistrate is satisfied that there are reasonable grounds to suspect relevant material is on the premises.

It is an offence for an investigator to fail, on request, to produce a copy of the warrant. The maximum penalty is 20 penalty units ($2,200).

626.	Powers of investigator while on premises [NC] [MB s 1510]

This clause sets out the powers that an investigator may exercise when on premises under Division 3.

PART 6.4 — Additional powers in relation to incorporated legal practices [ MB Pt 15, Div 4]

627.	Application of Part [NC] [MB s 1511]

This clause states that Division 4 applies to investigations and audits in relation to incorporated legal practices.

628.	Investigative powers relating to investigations and audits [NC] [MB s 1512]

This clause states that a person conducting an investigation or person conducting an audit to which Part 6.4 applies may exercise the powers contained in Part 6.4.

629.	Examination of persons [NC] [MB s 1513]

This clause gives investigators certain powers, in relation to incorporated legal practices, possessed by the Australian Securities and Investment Commission under the Australian Securities and Investment Commission Act 2001.

630.	Inspection of books [NC] [MB s 1514]

This clause gives investigators certain powers, in relation to the inspection of books of incorporated legal practices, possessed by the Australian Securities and Investment Commission under the Australian Securities and Investment Commission Act 2001.

631.	Power to hold hearings [NC] [MB s 1515]

This clause provides that the Law Society or the investigator may hold hearings for the purposes of investigations, examinations and audits. These hearings are conducted as if certain provisions of the Australian Securities and Investment Commission Act 2001 apply.

PART 6.5 — Miscellaneous matters [MB Pt 15, Div 5]

632.	Obstruction of investigator [NC] [MB s 1517]

This clause provides that it is an offence to obstruct an investigator. The maximum penalty for breach is 6 months imprisonment or 100 penalty units ($11,000).

633.	Obligation of Australian lawyers [NC] [MB s 1518]

This clause provides that an Australian legal practitioner must not mislead the Law Society or an investigator when they are exercising a power or function under this Act. A breach may constitute professional misconduct or unprofessional conduct.

634.	Permitted disclosure of confidential information [NC] [MB s 1519]

This clause sets out the circumstances in which the Law Society or an investigator may disclose information.

This clause also protects a person from liability in respect of information disclosed in good faith.

CHAPTER 7 — REGULATORY AUTHORITIES

This Chapter provides for the establishment of the regulatory bodies necessary for the administration of the Act. In general terms the regulatory bodies in place under the current Legal Practitioners Act have been retained.

The significant new position is that of the Statutory Supervisor. This position takes on some of the roles performed under the current Act by the Attorney-General and roles performed in other jurisdictions by Legal Ombudsmen. The position is be filled by the Solicitor-General or, in due course, some other senior government officer or someone independent of the profession. The role will not be full time.

All of the regulatory authorities (including the Statutory Supervisor) are subject to the jurisdiction of the Northern Territory Ombudsman (as contained in the Ombudsman Act) in respect of their statutory functions. Accordingly, the Ombudsman has been removed from day to day regulatory roles in respect of the legal profession.

This Part should also be read with the Interpretation Act which provides for matters such as acting appointments.

PART 7.1 — Law Society Northern Territory

Division 1— Establishment, functions and powers of Law Society

635.	Establishment

This clause provides for the establishment of the Law Society.

636.	Status

This clause that the Law Society, despite being established by legislation, is not an Agency (for the purposes of legislation such as the Financial Management Act or the Public Sector Employment and Management Act).

637.	Members constituting Law Society

This clause provides that the Law Society is comprises of persons on an Australian roll being persons who hold or are deemed to hold a practising certificate and who have paid any membership fee fixed by the Law Society.

Division 2 — Management of Law Society

638.	Council of Law Society

This clause provides for the Council of the Law Society. The members of the Council are elected by the members of the Society.

639.	Council's function

The function of the Council is to manage the affairs of the Law Society.

640.	Chief executive officer

This clause provides for the position of the chief executive office of the Law Society. The chief executive officer is appointed by the Council.

641.	Chief executive officer's function

The chief executive officer is, subject to the direction of the Council, responsible for the day to day management of the affairs of the Law Society.

Division 3— Financial matters

642.	Financial management

This clause provides that the Law Society has the responsibility (subject to the Regulations and clause 645(1)) for the management of the affairs of the Society.

643.	Budget

This clause must for each financial year adopt a budget and, if amendments are required, approve the amendments.

Division 4 — General matters

644.	Constitution

This clause sets out that the Law Society must have a written constitution and that the constitution must be filed with the Commissioner of Consumer Affairs.

645.	Relationship with Associations Act

The clause also provides that various sections of the Associations Act apply.

For the purposes of the application of those sections the chief executive officer is taken to be the public officer.

This clause provides that most of the provisions of the Associations Act apply (subject to the Regulations) as if the Law Society is an association.

646.	Relationship with other Acts

The clause also provides that:

·	the Society (including the Council) is a public sector organisation for the purposes of the Information Act

·	the Society is a public authority for the Ombudsman Act and the chief executive officer is the principal officer for the Ombudsman Act.

647.	Delegations

This clause provides that the Law Society, the Council and the chief executive officer may delegate powers and functions.

648.	Annual report

This clause provides that the Law Society must produce an annual report.

Part 7.2 — Admission Board

649.	Definitions

This clause provides for definitions of:

·	appointed member
·	chairperson

650.	Establishment

This clause provides for the establishment of the Legal Practitioner Admission Board of the Northern Territory.

651.	Membership

This clause provides that the Admission Board is to be comprised of the Master of the Supreme Court and 6 persons appointed by the Chief Justice. Of those persons one must be appointed on the nomination of the Attorney-General, and 2 members must be local lawyers.

652.	Duration of appointment

This clause provides that appointments to the Admission Board last for the period from the date of appointment to the following 30 September.

653.	Removal from office of appointed member

This clause provides for the circumstances in which the Supreme Court may remove an appointed member of the Admission Board.

654.	Secretary

The Chief Justice may appoint a person as the secretary to the Admission Board.

655.	Meetings

This clause provides that the quorum for the Admission Board is 3 and that meetings are to be held as decided by the Chairperson or the Board.

656.	Delegations

This clause provides for delegations to be made by the Board to the Chairperson, the Secretary or a committee of members.

657.	Protection from liability

This clause provides that members of the Admission Board are personally protected from liability for acts done in good faith in the exercise of a statutory function or power.

PART 7.3 — Legal Practitioners Funds Management Committee

658.	Definitions

This clause contains definitions of:

·	appointed member
·	chairperson

659.	Establishment

This clause provides for the establishment of the Legal Practitioners Funds Management Committee.

660.	Status

This clause provides for the status of the Legal Practitioners Funds Management Committee.

661.	Membership

This clause provides that the Funds Management Committee is to comprise the chief executive officer (of the Law Society), the President (or nominee) of the Society and for 2 appointed members namely a person appointed by the Chief Executive Office (of the Department of Justice) and a person appointed by the Chief Executive Officer (of Northern Territory Treasury). 

Additionally, it is proposed that a consumer representative also be appointed. The Funds Management Committee is to be chaired by the representative of the Chief Executive Officer of the Department of Justice.

662.	Duration of appointment

Appointments of appointed members to the Funds Management Committee last for 2 years.

663.	Resignation and removal from office of appointed member

This clause provides for the resignation of appointed members of the Funds Management Committee and for the removal by the Attorney-General of members.

664.	Meetings

The quorum for the Funds Management Committee is 3 persons. Meetings are to be held as decided by the Chairperson or the Admission Board.

665.	Financial management

This clause provides that the Funds Management Committee must manage its financial affairs in accordance with the Regulations.

666.	Delegations

This clause provides for delegations by the Funds Management Committee.

667.	Protection from liability

This clause provides that members of the Funds Management Committee are personally protected for liability for acts done in good faith in the exercise of a statutory function or power.

PART 7.4 — Legal Practitioners Disciplinary Tribunal

668.	Definition

This clause provides for the definition of "chairperson".

669.	Establishment

This clause provides for the establishment of the Legal Practitioners Disciplinary Tribunal.

670.	Membership

This clause provides that the Disciplinary Tribunal is comprise:

·	a chairperson (being a person who has practised law for at least 7 years and who is either a judicial officer/former judicial officer or who is entitled to be issued with a local practising certificate) appointed by the Attorney-General
·	3 laypersons appointed by the Attorney-General
·	5 Australian lawyers appointed by the Attorney-General being nominations of the Law Society and with 2 of these persons to be local counsel
·	3 Australian lawyers (not being nominated by the Society) appointed by the Attorney-General.

671.	Chairperson and deputy chairperson

This clause provides for the appointment of the Chairperson and the Deputy Chairperson. It also provides that the Deputy has all the powers and functions of the Chairperson when the Chairperson is absent or unable to exercise/perform powers and functions.

672.	Duration of appointment [NT s 48AD]

This clause provides that appointments to the Disciplinary Tribunal last for 3 years or lesser period as contained in the instrument of appointment.

673.	Resignation and removal of member [NT s 48AE]

This clause provides for the resignation of members of the Disciplinary Tribunal and for the removal of members by the Attorney-General.

674.	Constitution of Disciplinary Tribunal for hearings

This clause sets out that it is the role of the Chairperson to constitute the Disciplinary Tribunal for the purpose of any particular hearing. Two or more Tribunals may be constituted at the same time. However, each constitution of the tribunal must include at least one least one member from those nominated by the Law Society and one of the laypersons.

675.	Presiding member

This clause provides the method of determining who is to preside over meetings of the Disciplinary Tribunal. In essence the Chairperson makes the decision and in the absence of that person the members present elect a member to preside.

676.	Change in composition

This clause provides that a hearing is not necessary affected if a member (except for the presiding member) vacates office or ceases to be available to continue the hearing. If 2 or members vacate their officer or are unavailable or if the presiding member is in this position, the Tribunal must recommence proceedings. However, it can have regard to evidence collected by the former members of the Tribunal.

677.	Protection from liability

This clause provides that members of the Disciplinary Tribunal are personally protected for liability for acts done in good faith in the exercise of a statutory function or power.

PART 7.5 — Statutory Supervisor

678.	Office established

This clause provides for the office of the Statutory Supervisor by the Attorney-General. However, in the absence of an appointment under clause 680, the Solicitor-General is to be the Statutory Supervisor.

679.	Appointment

This clause provides for the appointment of the Statutory Supervisor by the Attorney-General.

680.	Resignation

This clause provides for the resignation of the Statutory Supervisor.

681.	Delegations

This clause provides that the Statutory Supervisor may delegate powers and functions. 

682.	Protection from liability

This clause provides that Statutory Supervisor is personally protected for liability for acts done in good faith in the exercise of a statutory function or power.

PART 7.6 — Application of Corporations Act 

683.	Excluded matters for Corporations Act [s 6B]

This clause provides that the Law Society and its employees are excluded matters for the purposes of the Corporations Act 2001. The effect of this clause is that the Law Society is not subject to those Corporations Law matters specified in the Regulations.

PART 7.7 — General matters

684.	Definition

This clause contains a definition of "regulatory authority".

685.	Functions

This clause states the general principle that the regulatory authorities have (respectively) the functions provided for in this Bill.

686.	Powers

This clause states the general principle that the regulatory authorities have (respectively) all the powers necessary for the performance of the functions provided for in this Bill.

687.	Evidentiary provisions

This clause provides that judicial notice must be taken of the seals of the Law Society or the Funds Management Committee or the signatures of the chief executive officer, the master, the chairperson of the Funds Management Committee, the chairperson of the Disciplinary Tribunal and the Statutory Supervisor.

CHAPTER 8 — LEGAL PROFESSION RULES AND REGULATIONS

PART 8.1 — LEGAL PROFESSION RULES

Division 1- Preliminary matters

688.	Purpose [NC] [MB s 1601]

This clause states that the purpose of Chapter 8 is to promote high standards through rules of professional conduct.

Division 2— Rules for Australian legal practitioners and locally registered foreign lawyers

689.	Rules for Australian legal practitioners [CNU] [NT s 45A]

This clause states that the Law Society may make rules about legal practice in the Northern Territory.

690.	Rules for foreign lawyers [CNU] [MB s 1603]

This clause states that the Law Society may make rules about the practice of Australian registered foreign lawyer in the Northern Territory.

691.	Subject matter of legal profession rules [CNU] [MB s 1604]

This clause sets out that the Legal Practitioner's Rules may cover any aspect of legal practice, including standards of conduct. There is a limited power to make rules regarding advertising.

Division 3— Rules for incorporated legal practices and multi-disciplinary partnerships

692.	Rule-making power [CNU] [MB s 1606]

This clause states that the Law Society may make rules about legal practice in the Northern Territory by incorporated legal practices and multi-disciplinary practices.

Division 4— General matters

693.	Rule-making procedures [NC] [MB s 1607]

This clause provides the process that must be followed in the making of Legal Practitioner Rules. The Law Society must consult with the Chief Justice, the Bar Association and persons prescribed by Regulation. There must also be public consultation. The rules are brought into effect as subordinate legislation in accordance with section 63 of the Interpretation Act. This means that they must be approved by the Attorney-General and may be disallowed by the Legislative Assembly.

694.	Binding nature of legal profession rules [CNU] [MB s 1608]

This clause provides that the Legal Practitioner Rules are binding on Australian legal practitioners and Australian registered foreign lawyers to whom they apply. Failure to comply is not a breach of the Act but may constitute professional misconduct or unprofessional conduct.

695.	Legal profession rules inconsistent with Act or Regulations [CNU] [MB s 1609]

A Legal Practitioner Rule is ineffective to the extent that it is inconsistent with a provision of the Act.

PART 8.2 – REGULATIONS

696.	Regulation making power [NC][MB s.1710]

This clause provides for the making of Regulations.

CHAPTER 9 — MISCELLANEOUS MATTERS

697.	Contravention of certain provisions not offence [NT s 130]

This clause provides for the non application of section 69A of the Summary Offences Act.

698.	Liability of principals [CU] [MB s 1701]

This clause makes each principal of a law practice liable for any breaches of the Act by the law practice.

699.	Associates who are disqualified or convicted persons [NC] [MB s 1702]

This clause provides that a law practice must not have a lay associate who is a disqualified person or who has been convicted of a serious offence (unless the Law Society has given approval).

It is an offence for a lay person (as described above) to seek to become a lay associate of a law practice unless the person tells the law practice of the disqualification or conviction. The maximum penalty for breach is 100 penalty units ($11,000) and/or 6 months imprisonment.

700.	Injunctions [NC] [MB s 1703]

This clause provides that the Law Society may apply to the Supreme Court for an injunction to stop contraventions of the Act (including the Regulations and the Rules). Interim injunctions can also be granted.

701.	Disclosure of information by local regulatory authorities [NC] [MB s 1704]

This clause provides for the disclosure of information between local regulatory authorities and with interstate regulatory authorities. The terms "interstate regulatory authority" and "local regulatory authority" are defined for the purposes of this clause.

702.	Confidentiality of personal information [CNU] [MB s 1705]

This clause provides for the confidentiality personal information. The maximum penalty for illegal disclosure is 2 years imprisonment/100 penalty units ($44,000). The clause contains definitions of "local regulatory authority", "personal information" and "relevant person".

703.	Professional privilege or duty of confidence does not affect validity of or compliance with certain requirements [NC] [MB s 1706]

This clause provides that the obligations under clauses 256 (reporting of irregularities), 594 (Requiring documents and information) and 622 (requiring of documents) are not affected by legal professional privilege or a duty of confidence.

704.	Duty to report suspected offences [NC] [MB s 1178]

If, in handling a complaint, the Law Society is of the view that an offence has been committed (whether or not against this Act) the Society must report to the Commissioner of Police or other relevant prosecuting authority.

705.	Payment of fines

This clause provides that disciplinary fines are paid to the Fidelity Fund.

706.	Approved forms [NC] [MB s 1708]

This clause provides that entities under the Act may approve forms used for or in connection with their powers and functions.

CHAPTER 10 — REPEALS AND TRANSITIONAL MATTERS FOR LEGAL PROFESSION ACT 2006

PART 10.1 – REPEALS

707.	Repeal of legal practitioner legislation

This clause provides for the repeal of the current Legal Practitioners Act.

708.	Repeal of other legislation

This clause provides for the repeal of the Law Society Public Purposes Trust Act. The effect of the repeal of that Act is that certain legislative requirement will cease to apply to the Public Purposes Trust - i.e. the Trust is not itself affected by the repeal.

PART 10.2 - TRANSITIONAL MATTERS

Division 1- Preliminary matters

709.	Definitions

This clause contains definitions of "repealed Act" (Legal Practitioners Act) and "commencement day" (for the purposes of Part 10.2) as being the day on which the Legal Practitioners Act is repealed.

Division 2 - Reservation of legal work and legal titles

710.	Her Majesty’s Counsel [NT,s 20]

Currently, section 20 of the Legal Practitioners Act, provides for the appointment of Queen’s Counsel by the Administrator acting on the advice of the Executive Council. In practice the Executive usually relies on the advice of the Chief Justice after consultations between the Chief Justice, the professional organisations, other members of the Judiciary and senior members of the profession. There is a written protocol to this effect.

On the repeal of section 20, Queen’s Counsel or Senior Counsel will be appointed as referred to in clause 21 of this Bill.

Current appointments will not be affected by the repeal of section 20.

Division 3 - Admission of local lawyers

711.	Local roll

This clause provides that the Roll currently maintained under rule 3 of the Legal Practitioners Admission Rules is the Roll for the purposes of clause 27 of this Bill.

712.	Existing legal practitioners

This clause deems admissions under the Legal Practitioners Act to have occurred, for the purposes of this Bill, on the day of admission under the Legal Practitioners Act.

713.	Applications for admission

This clause provides that admission applications pending at the time of the repeal of Legal Practitioners Act are to be processed as if the Legal Practitioners Act applies to them.

714.	References to legal practitioner

This clause provides that context will decide whether references in other Acts and documents to "legal practitioner" will be taken as being references to "Australian lawyers" or "Australian legal practitioners".

It is proposed to draft a consequential amendments Bill that will, in due course, correct the text of the some 120 Acts and subordinate legislation that contain usages of the term "legal practitioner" or associated terms.

Division 4 - Legal practice by Australian legal practitioners

715.	Practising certificates

Currently, Northern Territory practising certificates expire on 30 September. The effect of this clause is to provide that current certificates will last to 30 September 2007 (assuming the legislation commences before that date) Applications for renewal need to be made in accordance with clause 48 (i.e. by 1 July 2007). There is no transitional provision avoiding the operation of that clause.

716.	Applications for practising certificates

This clause provides that applications for practising certificates being processed at the time of the repeal of Legal Practitioners Act will be processed in accordance with the provisions of the Legal Practitioners Act.

717.	Supervised legal practice

This clause provides that, for time occurring prior to commencement, periods of employment as a government lawyer or as a lawyer in a complying community legal centre count for the purposes of clause 73.

Division 5 - Incorporated legal practices and 
multi-disciplinary partnerships

718.	Incorporated legal practitioners

This clause provides that incorporated legal practices are not required to repeat obligations regarding the given of notice or in respect of the disclosure requirements imposed by clause 130. Any disqualification imposed under section 35AZE of the Legal Practitioners Act continues under the new Act.

719.	Multi-disciplinary practices

This clause provides that multi-disciplinary partnerships are not required to repeat obligations regarding the given of notice or in respect of the disclosure requirements imposed by clause 159.

Division 6 - Practising companies

720.	Definitions

This clause defines terms relating to "practising companies" as existing under the Legal Practitioners (Incorporation) Act.

721.	Repealed incorporation Act ceases to apply

This clause provides that the Legal Practitioners (Incorporation) Act ceases to apply to "practising companies". Currently, a transitional provision in the Legal Practitioners Amendment (Incorporated Legal Practices and Multi­disciplinary Partnerships) Act 2003 has continued the operation of the Legal Practitioners (Incorporation) Act to such practising companies.

722.	Alteration of constitution

This clause provides that a practising company may only alter its constitution with the approval of the Law Society.

723.	Practising company is a law firm

This clause provides that a practising company has the same status as a firm. This clause is a re-enactment the relevant provision of the Legal Practitioners (Incorporation) Act.

724.	Directors to guarantee debts of company

This clause provides that directors of practising company are taken to jointly and severally guarantee the debts of the company. This clause is a re-enactment of the relevant provision of the Legal Practitioners (Incorporation) Act.

725.	Records

This clause provides that the Chief Justice (who currently has the records for practising companies) may make arrangements with the Law Society regarding those records.

726.	Practising company becoming incorporated legal practice

This clause facilitates a practising company converting into an incorporated legal practice by giving notice under clause 122.

Division 7 - Legal practice by foreign lawyers

727.	Foreign lawyers

This clause provides that registration under the Legal Practitioners Act as a foreign lawyer is effective for the purposes of the Bill.

Division 8 - Trust money and trust accounts

728.	Definitions

This clause contains definitions for the purposes of Division 8.

729.	Payment date

For the purposes of clause 732, this clause provides a definition of “payment date”.

730.	Continuing application of former trust account provisions

This clause provides for a transitional period (to 30 June 2007) during which trust monies must be managed in accordance with the Legal Practitioners Act.

731.	When offence not committed

This clause provides that a person does commit a breach of Part 3.1 during the period of 3 months following the repeal of the Legal Practitioners Act so long as it was done in attempting to comply with the new provisions or if done in substantial conformity with the new provisions.

732.	Return of statutory deposits

This clause assumes that Regulations will not be made under clause 281 (dealing with statutory deposits). Instead law practices will hold all of their trust monies in their own trust accounts with the financial institution with which the monies are held being obliged to pay interest on those amounts to the Fidelity Fund.

On that basis the Funds Management Committee is obliged to return statutory deposits held under the Legal Practitioners Act to law practices.

Such payments must, unless the Statutory Supervisor decides otherwise, be made within 6 months of the repeal of the Legal Practitioners Act.

733.	Interest on statutory deposits

This clause provides that the Funds Management Committee must pay all interest accruing on statutory deposits to the Fidelity Fund.

Division 9 - Costs disclosure and assessment

734.	Definition

This clause defines "former costs provisions" (i.e. Part X of the Legal Practitioners Act) for the purposes of Part 10.2, Division 9.

735.	Continuing application of former costs provisions

This clause provides that the former costs provisions apply when instructions were given prior to the repeal of the Legal Practitioners Act.

736.	Taxation of costs

A taxation of costs commenced prior to the repeal of the Legal Practitioners Act continues as if the repealed Act had not been repealed.

737.	Compliance with former costs provisions sufficient

This clause provides a transitional period (to 31 December 2007) during which a law practice may continue to comply with the former costs provisions.

Division 10 - Professional Indemnity insurance

738.	Existing professional indemnity insurance

This clause provides that indemnity insurance under the Legal Practitioners Act is deemed to comply with the new legislation.

739.	Exemptions

This clause provides that exemptions given under section 35B of the Legal Practitioners Act is deemed to have been given under clause 375(2) of this Bill.

Division 11 - Fidelity cover

740.	Definitions

This clause contains definitions of "old fund" (being the Fidelity Fund as it exists under the Legal Practitioners Act) and "new fund" (being the Fidelity Fund as it will exist under the new Bill).

741.	Fidelity Fund

This clause deems the old fund to be the new fund.

742.	Amounts payable to and from old fund before commencement date

This clause that rights and responsibilities of the old fund become the rights and responsibilities of the new fund.

743.	Determination for funding for Law Society

This clause provides that a determination under clause 388 can be made in respect of expenses incurred prior to the commencement of this Act.

Division 12 - Complaints and discipline

744.	Pending investigations and professional conduct

This clause provides that Chapter 4 applies for complaints or directions by the Attorney-General under the Legal Practitioners Act but which an investigation had not commenced at the time of the repeal of the Legal Practitioners Act. However, the disciplinary action cannot be more onerous than would have been the case under the Legal Practitioners Act.

745.	Investigations into professional conduct

This clause provides that the Legal Practitioners Act applies to investigations that had commenced prior to the repeal of the Legal Practitioners Act.

746.	Pending hearings and inquiries

This clause provides that appeals lodged under the Legal Practitioners Act or charges laid must continue on under the Legal Practitioners Act.

747.	New complaints about old conduct

This clause provides that Chapter 4 applies for complaints about behaviour that occurred prior to the repeal of the Legal Practitioners Act but for which no action has occurred. However, the disciplinary action cannot be more onerous than would have been the case under the Legal Practitioners Act.

Division 13 - External intervention

748.	Application of Chapter 5 for existing Part VIIIA managers

This clause provides that Chapter 5 applies to managers appointed under Part VIIIA of the Legal Practitioners Act.

749.	Continued application of Part IX to application for appointment of receiver

This clause provides that Part IX of Legal Practitioners Act applies to applications for the appointments of receivers made before the repeal of the Legal Practitioners Act.

750.	Application of Chapter 5 for existing Part IX receivers

This clause provides that the provisions of this Bill dealing with receivers will apply to receivers appointed under Part IX of the Legal Practitioners Act.

Division 14 - Regulatory authorities

751.	Law Society

This provides that the Law Society as established by this Bill (clause 635) is the same Law Society as established under the Legal Practitioners Act. Membership of the Society and of the Council for the Society continue on for the new legislation as under the repealed Act.

752.	Admission Board

This provides that the Admission Board as established by this Bill is the same Admission Board as established under the Legal Practitioners Act. Membership of the Admission Board continues on for the new legislation as under the repealed Act.

753.	Legal Practitioners' Fidelity Fund Committee [NT s.86]

This provides that the Legal Practitioners Funds Management Committee as established by this Bill is the same body as the Legal Practitioners' Fidelity Fund Committee as established under the Legal Practitioners Act.

754.	Legal Practitioners' Trusts Committee [NT s.79A]

This clause provides that the  Legal Practitioner' Trust Committee continues in existence for the purposes of the transitional provisions. 

However, on day after the “payment date” referred to in clause 729, the Committee ceases to exist.  On that day, the assets of the Legal Practitioner' Trust Committee are vested in the Legal Practitioners Funds Management Committee.

Division 15 - Admission rules and legal profession conduct rules

755.	Admission rules

This clause provides that the current Admission Rules are taken to be admission rules for the purposes of clause 43 of this Bill.

756.	Professional conduct rules [NT s. 79A]

This clause provides that the current Rules of Professional Conduct and Practice are taken to be admission rules for the purposes of clause 43 of this Bill.

Division 16 - Law Society public purposes trusts

757.	Winding up of trust

This clause provides that, if the Law Society winds up the trust set out in the schedule to the Law Society Public Purposes Trust Act, it may pay the balance into the Fidelity Fund.

Division 17 - Miscellaneous matters

758.	General saving and transitional provision

This clause preserves actions done for the purposes of the Legal Practitioners Act. They exist as if done for the purposes of this Bill. These general provisions operate subject to context, any other specific provisions and the Regulations (which may also deal with transitional matters as referred to in clause 761).

759.	Continued application of repealed Act

This clause is a machinery clause stating that for provisions of the repealed Legal Practitioners Act that have some continued operation, the other supporting provisions (eg definitions and subordinate legislation) also continue operation.

760.	Interpretation Act not affected

Part III of the Interpretation Act provides for various rules regarding the repeal and expiration of Acts. Subject to any contrary intention, Part 10.2 does not affect the operation of Part III.

761.	Transitional Regulations

Regulations can be made during the 2 year period following commencement of Part 10.2 for transitional matters that are not covered by the Act. Such Regulations may be worded so as to have retrospective operation.

762.	Regulations - minor errors

For the period of 2 years after the commencement of the legislation, Regulations can be made that fix minor errors in the Act.

Schedule

This schedule sets out the names of the Acts that are to be repealed by this Act.