Legal Profession Uniform Law Application Act 2014 (NSW)

Legal Profession Uniform Law Application Act 2014 No 16 An Act to apply the Legal Profession Uniform Law as a law of New South Wales; to provide for certain local matters to complement that Law; to repeal the Legal Profession Act 2004; to make transitional arrangements; to make consequential amendments to other Acts; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Legal Profession Uniform Law Application Act 2014. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation. (2) Different days may be appointed under subsection (1) for the commencement of different provisions of the Legal Profession Uniform Law set out in Schedule 1 to the Legal Profession Uniform Law Application Act 2014 of Victoria. 3 Definitions (1) In this Act— appropriate Council means— (a) subject to paragraph (b), the Law Society Council, or (b) in relation to matters relating to barristers or former barristers (including an application for a practising certificate to practise as a barrister)—the Bar Council. Bar Association means the New South Wales Bar Association. Bar Council means the Council of the Bar Association. Commissioner for Uniform Legal Services Regulation means the person appointed to or acting in the office of the Commissioner for Uniform Legal Services Regulation established by Part 8.3 of the Legal Profession Uniform Law as applied in the participating jurisdictions. committee includes a subcommittee of a committee. costs assessment rules means rules under Division 7 of Part 7. Council means (except in relation to the Legal Services Council) the Bar Council or the Law Society Council. Fidelity Fund means the Legal Practitioners Fidelity Fund maintained under section 115. Law Society means the Law Society of New South Wales. Law Society Council means the Council of the Law Society. Legal Profession Uniform Law (NSW) means the provisions applying in this jurisdiction because of section 4. Legal Services Council means the Legal Services Council established by Part 8.2 of the Legal Profession Uniform Law as applied in the participating jurisdictions. local legal practitioner means an Australian legal practitioner whose home jurisdiction is New South Wales. local practising certificate means an Australian practising certificate issued under the Legal Profession Uniform Law (NSW) to an Australian legal practitioner whose home jurisdiction under that Law is New South Wales. local registration certificate means an Australian registration certificate issued under the Legal Profession Uniform Law (NSW) to a person whose home jurisdiction under that Law is New South Wales. local regulations means the regulations under section 166. Manager, Costs Assessment means the person appointed as Manager, Costs Assessment under section 93B, and includes a delegate of that person and a person acting as or exercising the functions of the Manager, Costs Assessment. NCAT means the Civil and Administrative Tribunal of New South Wales. NSW Admission Board means the Legal Profession Admission Board constituted under Division 1 of Part 3. NSW Commissioner means the person holding office or acting as Legal Services Commissioner under Division 2 of Part 3. Public Purpose Fund means the fund maintained under section 48. Register of Disciplinary Action—see section 152. Secretary means the Secretary of the Department of Justice. this jurisdiction means the State of New South Wales. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Terms used in this Act and also in the Legal Profession Uniform Law (NSW) have the same meanings in this Act as they have in that Law. (3) Notes included in this Act do not form part of this Act. 3A General definitions for other legislation In any Act or instrument made under an Act— admission to the Australian legal profession has the same meaning as in the Legal Profession Uniform Law (NSW). Australian practising certificate has the same meaning as in the Legal Profession Uniform Law (NSW). Australian registration certificate has the same meaning as in the Legal Profession Uniform Law (NSW). legal costs legislation means— (a) Parts 6 and 7 of this Act, and (b) Schedules 1, 2 and 6 to this Act, and (c) Part 4.3 of the Legal Profession Uniform Law (NSW), and (d) regulations or rules made under or for the purposes of the provisions referred to in paragraphs (a)–(c). legal profession legislation means— (a) this Act and the local regulations, and (b) the Legal Profession Uniform Law (NSW), and (c) the Uniform Regulations and the Uniform Rules as they apply in this jurisdiction. Part 2 Application of Uniform Law Division 1 General application provisions 4 Application of Legal Profession Uniform Law The Legal Profession Uniform Law set out in Schedule 1 to the Legal Profession Uniform Law Application Act 2014 of Victoria— (a) applies as a law of this jurisdiction, and (b) as so applying may be referred to as the Legal Profession Uniform Law (NSW), and (c) so applies as if it were an Act. 5 Exclusion of legislation of this jurisdiction (1) The following Acts of this jurisdiction do not apply to the Legal Profession Uniform Law (NSW) or to instruments made under that Law— (a) the Interpretation Act 1987 (except as provided by section 416(6) of the Legal Profession Uniform Law (NSW) and section 8 of this Act), (b) the Subordinate Legislation Act 1989. (2) To avoid doubt, this section does not limit the application of— (a) the Interpretation Act 1987 to a provision of this Act, or (b) the Subordinate Legislation Act 1989 to local regulations. 6 Application of privacy and other legislation (1) In this section— government sector agency means— (a) a Public Service agency or other government sector agency within the meaning of the Government Sector Employment Act 2013, or (b) a NSW Government agency (see section 13A of the Interpretation Act 1987), or (c) an entity constituted by or under an Act or exercising public functions (such as a State owned corporation), being an entity that is prescribed by the local regulations for the purposes of this definition. government sector employee means a person employed on any basis, or on secondment, in a government sector agency. relevant Acts means the following Acts of New South Wales as in force from time to time— (a) the Privacy and Personal Information Protection Act 1998, (b) the Government Information (Public Access) Act 2009, (c) the State Records Act 1998, (d) the Ombudsman Act 1974. (2) The relevant Acts apply to the Legal Services Council and the Commissioner for Uniform Legal Services Regulation in the manner provided by section 416 of the Legal Profession Uniform Law (NSW) and do not apply by their own force. (3) However, the relevant Acts apply to a government sector agency or government sector employee exercising a function under the Legal Profession Uniform Law (NSW). 7 Application of Government Sector Audit Act 1983 and Government Sector Finance Act 2018 (1) The Government Sector Audit Act 1983 and the Government Sector Finance Act 2018 apply to the Legal Services Council and the Commissioner for Uniform Legal Services Regulation as if they were each a GSF agency within the meaning of those Acts. (2) The local regulations may modify the Government Sector Audit Act 1983 and Government Sector Finance Act 2018 for the purposes of this section. (3) Without limiting subsection (2), the provisions of section 416 (5) of the Legal Profession Uniform Law (NSW) apply to the local regulations under this section in the same way as they apply to the Uniform Regulations. 8 Scrutiny and disallowance of Uniform Regulations (1) Sections 40 and 41 of the Interpretation Act 1987 and the provisions of the Legislation Review Act 1987 apply to a Uniform Regulation in the same way as they apply to a statutory rule. (2) However, if a Uniform Regulation is disallowed in this jurisdiction, the regulation does not cease to have effect in this jurisdiction unless the regulation is disallowed in a majority of the participating jurisdictions (and, in such a case, the regulation ceases to have effect on the date of its disallowance in the last of the jurisdictions forming the majority). (3) In this section— Uniform Regulation includes a provision of a Uniform Regulation. Note. If there are only 2 participating jurisdictions, a majority would in that case consist of both jurisdictions. 9 No double jeopardy If— (a) an act or omission is an offence against the Legal Profession Uniform Law (NSW) and is also an offence against a law of another participating jurisdiction, and (b) the offender has been punished for the offence under the law of the other jurisdiction, the offender is not liable to be punished for the offence against the Legal Profession Uniform Law (NSW). Division 2 Further application provisions 10 Meaning of term used in Legal Profession Uniform Law (NSW) In the Legal Profession Uniform Law (NSW)— this jurisdiction means the State of New South Wales. 11 Designation of local authorities and tribunals (1) A person or body specified in Column 2 of Table 1 is the designated local regulatory authority for the purposes of a provision of the Legal Profession Uniform Law (NSW) specified in Column 1 of that Table opposite that person or body. Note. See section 6 of the Legal Profession Uniform Law (NSW) for the definition of designated local regulatory authority. Table 1 Designated local regulatory authorities Column 1 Column 2 Provision of Legal Profession Uniform Law (NSW) Designated local regulatory authority Chapter 2, section 14 Bar Council Law Society Council Chapter 2, Part 2.2 (except section 23) NSW Admission Board Chapter 2, section 23 Bar Council Law Society Council Chapter 3 (except sections 49, 50, 119, 120 and 121 and Part 3.4) Appropriate Council Chapter 3, section 49 Law Society Council Chapter 3, section 50 Bar Council Chapter 3, Part 3.4 Bar Council Law Society Council Chapter 3, sections 119 and 120 (1) Bar Council Law Society Council NSW Commissioner Chapter 3, section 120(4) Bar Council Law Society Council Chapter 3, section 121 (except in the case of a person convicted of a serious offence) Appropriate Council Chapter 3, section 121 (in the case of a person convicted of a serious offence) NCAT Chapter 4 (except sections 174, 178, 194, 197, 202, 205, 215, 256, 257 and 258) Law Society Council Chapter 4, sections 174, 178, 194, 197, 202 and 205 NSW Commissioner Chapter 4, section 215 Appropriate Council Chapter 4, sections 256 and 257 NSW Commissioner Appropriate Council Chapter 4, section 258 Appropriate Council NSW Commissioner Chapter 5 Note. Section 405(2) of the Legal Profession Uniform Law (NSW) contemplates that the local regulatory authority (the NSW Commissioner) may delegate Chapter 5 functions to a professional association (the Bar Association or Law Society). See also sections 29(c) and 31(1)(c) of this Act. Chapter 6 Appropriate Council Chapter 7 (except to the extent that it applies to complaint investigations) NSW Commissioner Appropriate Council NSW Commissioner Chapter 7 to the extent that it applies to complaint investigations Note. These functions of the NSW Commissioner under Chapter 7 are "Chapter 5 functions" and therefore may be exercised by the Bar Association or Law Society by delegation. See the note in relation to Chapter 5 above. Chapter 9, section 421(2)(f) NSW Admission Board NSW Admission Board (in relation to admissions) Chapter 9, section 436(1) NSW Commissioner (in relation to Chapter 5 functions) Appropriate Council Chapter 9, section 436(2) NSW Admission Board NSW Admission Board Chapter 9, sections 437, 446, 447, 448, 449 and 453 NSW Commissioner Bar Council Law Society Council Chapter 9, section 466(7) Appropriate Council Schedule 3 (except clause 14) Appropriate Council Schedule 3, clause 14 NSW Commissioner (2) The Prothonotary of the Supreme Court is the designated local roll authority for the purposes of sections 23, 24 and 462 of the Legal Profession Uniform Law (NSW). Note. See section 6 of the Legal Profession Uniform Law (NSW) for the definition of designated local roll authority. (3) A body specified in Column 2 of Table 2 is the designated tribunal for the purposes of a provision of the Legal Profession Uniform Law (NSW) specified in Column 1 of that Table opposite that body. Note. See section 6 of the Legal Profession Uniform Law (NSW) for the definition of designated tribunal. Table 2 Designated tribunals Column 1 Column 2 Provision of Legal Profession Uniform Law (NSW) Designated tribunal Chapter 2, section 23 NCAT Chapter 3, sections 100 and 101 (except in relation to decisions under section 89 or 92) Supreme Court Chapter 3, sections 100 and 101 (in relation to decisions under section 89 or 92) NCAT Chapter 3, section 119 NCAT Chapter 3, section 120 Supreme Court Chapter 4, section 198(4) Manager, Costs Assessment Chapter 4, sections 247 and 248 Supreme Court Chapter 5, Part 5.4, Division 3 NCAT Chapter 5, Part 5.5 NCAT Chapter 5, section 314 NCAT Chapter 6, Parts 6.5 and 6.6 Supreme Court Chapter 9, sections 453, 456 and 457 A court that would have jurisdiction to order payment of the pecuniary penalty if it were a debt Chapter 9, section 474(2) Any designated tribunal referred to in this table 12 Nomination of nominated fund and nominated trust authority For the purposes of section 149(6) of the Legal Profession Uniform Law (NSW)— (a) the Public Purpose Fund is the nominated fund, and (b) the Trustees of the Public Purpose Fund are the nominated trust authority. 13 Specification of fund The Public Purpose Fund is specified for the purposes of section 365 of the Legal Profession Uniform Law (NSW). 14 Unclaimed money (1) This section provides for how unclaimed money in a trust account is to be dealt with, as contemplated by section 167 of the Legal Profession Uniform Law (NSW). (2) If a law practice holding money in a trust account cannot find the person on whose behalf the money is held or a person authorised to receive it, the practice may— (a) pay the money to the Treasurer for credit to the Consolidated Fund, and (b) provide the Treasurer with such information as the Treasurer requires in relation to the money and the person on whose behalf the money was held by the practice. (3) If a law practice pays money to the Treasurer under subsection (2), the practice is relieved from any further liability in relation to the money. (4) The Treasurer must pay money deposited under this section to a person who satisfies the Treasurer as to his or her entitlement to the money. (5) Payment of money to a person under subsection (4)— (a) discharges the Crown and the Treasurer from any liability in relation to the money, and (b) does not discharge the person from any liability to another person who establishes a right to the money. (6) The Treasurer may require any person to provide information that the person has, or can obtain, about the entitlement of a person to money paid to the Treasurer under this section and attempts made to locate the person. (7) A person of whom a requirement is made under subsection (6)— (a) must comply with the requirement, and (b) must not, in purported compliance with the requirement, give information that he or she knows is false or misleading in a material particular. Maximum penalty (subsection (7)): 20 penalty units. 15 Fidelity fund The Legal Practitioners Fidelity Fund maintained under Division 1 of Part 9 is nominated as the fidelity fund of this jurisdiction for the purposes of Part 4.5 of the Legal Profession Uniform Law (NSW). Note. See section 222 of the Legal Profession Uniform Law (NSW). 16 Fidelity authority The Law Society Council is specified as the fidelity authority for the purposes of the definition of fidelity authority in section 6 of the Legal Profession Uniform Law (NSW). 17 Issuing authority for search warrants (1) Any person holding or acting in the office of Magistrate is the issuing authority for the purposes of section 377 of the Legal Profession Uniform Law (NSW). (2) Except as provided by the Legal Profession Uniform Law (NSW) or this Act, Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to search warrants under section 377 of the Legal Profession Uniform Law (NSW). 18 Pecuniary penalties to be paid into Public Purpose Fund For the purposes of section 456(a) of the Legal Profession Uniform Law (NSW), a penalty referred to in that paragraph is to be paid into the Public Purpose Fund. 18A Part 3 of Schedule 4 applies Part 3 of Schedule 4 to the Legal Profession Uniform Law (NSW) applies in New South Wales. 18B Non-compellability of certain witnesses Section 468(1) of the Legal Profession Uniform Law (NSW) does not apply to proceedings (including proceedings for an offence), hearings or inquiries under— (a) the Royal Commissions Act 1923, or (b) the Special Commissions of Inquiry Act 1983, or (c) the Independent Commission Against Corruption Act 1988, or (d) the Law Enforcement Conduct Commission Act 2016, or (e) the Ombudsman Act 1974. Note. See section 468(2) of that Law, which contemplates exceptions provided under jurisdictional legislation. Part 3 Local regulatory authorities Division 1 Legal Profession Admission Board 19 Constitution of NSW Admission Board (1) There is constituted by this Act a corporation with the corporate name of the Legal Profession Admission Board. Note. The Legal Profession Admission Board is referred to in this Act as the NSW Admission Board. See the definition of that term in section 3. (2) The NSW Admission Board is not and does not represent the Crown. (3) The NSW Admission Board is a continuation of and the same legal entity as the Legal Profession Admission Board constituted under the Legal Profession Act 2004. (4) Schedule 3 contains provisions relating to the membership and procedure of the NSW Admission Board. 20 Functions of NSW Admission Board (1) The NSW Admission Board has the functions conferred on it by or under the Legal Profession Uniform Law (NSW), this Act or any other Act, including by or under the Uniform Rules. (2) The NSW Admission Board has all the powers necessary to perform its functions, including the powers conferred on it by or under the Legal Profession Uniform Law (NSW), this Act or any other Act, including by or under the Uniform Rules. 20A Delegation of functions of NSW Admission Board (1) The NSW Admission Board may delegate any of the Board's functions under the Legal Profession Uniform Law (NSW) or this Act, other than this power of delegation and the power to make rules under this division, to— (a) a committee of the Board, or (b) a member of the Board, or (c) a member of the staff of the Board, or (d) a person, or a class of persons, prescribed by the regulations. (2) A committee of the Board may subdelegate any of the Board's functions delegated to the committee to a subcommittee of the committee. 20B Committees of NSW Admission Board (1) The NSW Admission Board may establish and dissolve committees to assist the Board in the exercise of the Board's functions. (2) A committee may be established or dissolved by— (a) a rule made under section 21A(2)(a), or (b) a determination made by the NSW Admission Board. (3) The NSW Admission Board may determine the procedure of a committee. (4) A committee may act— (a) in an advisory capacity, or (b) as delegate of the Board. (5) The members of a committee do not need to be members of the Board. 20C Staff of NSW Admission Board Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Board to exercise the Board's functions. Note— See the Government Sector Employment Act 2013, section 59. 21 Entitlement to be represented, heard and make representations (1) The Bar Council, the Law Society Council and the applicant concerned are entitled— (a) to make representations in writing to the NSW Admission Board in relation to any matter under consideration by the Board under Part 2.2 of the Legal Profession Uniform Law (NSW), and (b) to be represented and heard at any inquiry or appeal under that Part. (2) The NSW Admission Board must notify each Council in accordance with the admission rules of— (a) any application for admission, and (b) any application for a declaration under section 21 (Declaration of early assessment of suitability for a compliance certificate) of the Legal Profession Uniform Law (NSW), and (c) any declaration made under that section. (3) (Repealed) (4) The NSW Admission Board is entitled to be represented and heard at any appeal referred to in section 28 of the Legal Profession Uniform Law (NSW). 21A NSW Admission Board Rules (1) The NSW Admission Board may make rules for or with respect to— (a) any administrative matters relating to the functions of the Board, and (b) registration and deregistration as students-at-law and the qualifications for registration, and (c) the examination and assessment in academic subjects of candidates for registration and students-at-law, and (c1) the discipline of students-at-law, including enabling the NSW Admission Board to establish a scheme for— (i) the investigation of misconduct by students-at-law, and (ii) the discipline of students-at-law found to have engaged in misconduct, and (c2) the internal review of decisions made by the NSW Admission Board and committees of the Board, and (d) fees and costs payable for registration and students-at-law (other than fees for admission to the Australian legal profession) and the refund or remission of fees, and (e) fees in relation to the exercise of functions of the Board, other than a function for which a fee is already prescribed by legal profession legislation, and (f) the waiver, postponement, reduction or refund, in whole or in part, of the fees. (1A) A provision of legal profession legislation that prescribes a fee prevails, to the extent of an inconsistency, over a rule that specifies a fee. (2) Without limiting subsection (1) or the power of the NSW Admission Board to delegate functions under section 20A, the rules may— (a) provide for the establishment, dissolution and procedures of committees of the Board, and (b) confer or provide for conferring functions on a committee, including any functions of the Board, and (c) provide that a committee exercises any of its functions in an advisory capacity or as delegate of the Board. (3) A rule may do any of the following— (a) apply generally or be limited in its application by reference to specified exceptions or factors, (b) apply differently according to different factors of a specified kind, (c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body, (d) apply, adopt or incorporate a document as in force at a particular time or as in force from time to time. (4) A rule made under this section must not be inconsistent with— (a) this Act, or (b) the Legal Profession Uniform Law (NSW), or (c) the Admission Rules made by the Legal Services Council under Part 9.2 of that Law. (5) The rules must be published— (a) in the Gazette, and (b) on a website maintained by the Board. (6) Sections 40 and 41 of the Interpretation Act 1987 apply to the rules in the same way as they apply to a statutory rule. 21B NSW Admission Board—approved forms The NSW Admission Board may approve forms for use in connection with the Board's functions. Division 2 Legal Services Commissioner 22 Appointment of NSW Commissioner (1) The Governor may, on the recommendation of the Attorney General, appoint a person to be the NSW Legal Services Commissioner. Note. The Legal Services Commissioner is referred to in this Act as the NSW Commissioner. See the definition of that term in section 3. (2) The person so appointed is to be a person who, in the opinion of the Attorney General— (a) is familiar with the nature of the legal system and legal practice (but need not be an Australian legal practitioner), and (b) possesses sufficient qualities of independence, fairness and integrity. (3) Schedule 4 contains provisions relating to the NSW Commissioner. 23 Acting NSW Commissioner (1) The Attorney General may, from time to time, appoint a person to act in the office of the NSW Commissioner during the illness or absence of the NSW Commissioner (or during a vacancy in the office of NSW Commissioner) and a person, while so acting, has all the functions of the NSW Commissioner. (2) The Attorney General may, at any time, remove a person from the office of acting NSW Commissioner. (3) The acting NSW Commissioner is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Attorney General may from time to time determine. 24 Functions of NSW Commissioner (1) The NSW Commissioner has the functions conferred on him or her by or under the Legal Profession Uniform Law (NSW), this Act or any other Act, including by or under the Uniform Rules. (2) The NSW Commissioner has all the powers necessary to perform his or her functions, including the powers conferred by or under the Legal Profession Uniform Law (NSW), this Act or any other Act, including by or under the Uniform Rules. (3) Without limitation, the functions of the NSW Commissioner include the following functions— (a) to assist and advise complainants and potential complainants in making and pursuing complaints (including assisting complainants to clarify their complaints and to put their complaints in writing), (b) to conduct regular surveys of, and report on, the views and levels of satisfaction of complainants and respondent Australian lawyers with the complaints handling and disciplinary system, (c) to assist the Bar Council and Law Society Council to promote community education about the regulation and discipline of the legal profession, (d) to assist the Bar Council and Law Society Council in the enhancement of professional ethics and standards, for example, through liaison with legal educators or directly through research, publications or educational seminars, (e) to report on the NSW Commissioner's activities under the Legal Profession Unifo