New South Wales: 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 Uniform Law (NSW) or this Act. (4) The NSW Commissioner may appear by barrister or solicitor before, and be heard by, the Supreme Court in the exercise of the functions of the Supreme Court under the Legal Profession Uniform Law (NSW), this Act or otherwise in relation to Australian lawyers. 25 NSW Commissioner may require Councils to provide information (1) The NSW Commissioner may, for the purpose of exercising the NSW Commissioner's functions, do any of the following— (a) require the Bar Council or Law Society Council to provide information received by the Council that gives the Council reason to believe that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct, (b) require the Bar Council or Law Society Council to provide information relating to an application for an Australian practising certificate, (c) require the Bar Council or Law Society Council to provide information relating to a notification made by an Australian lawyer or an Australian-registered foreign lawyer for the purpose of complying with the Legal Profession Uniform Law (NSW), the Uniform Rules, this Act or the regulations, (d) require the Bar Council or Law Society Council to notify the NSW Commissioner of the Council's intention to grant, refuse to grant, cancel or suspend an Australian practising certificate. (2) A requirement by the NSW Commissioner under this section may relate to a specific case or may be made in general terms so as to relate to all cases or to a class of cases. (3) The Bar Council or Law Society Council must take into account any representations made by the NSW Commissioner on a matter under the Legal Profession Uniform Law (NSW), the Uniform Rules or this section. 26 Annual report of NSW Commissioner (1) As soon as practicable after 30 June (but before 31 December) in each year, the NSW Commissioner is to prepare and forward to the Attorney General a report on his or her activities for the 12 months ending on 30 June in that year. (2) The Attorney General is to lay the annual report or cause it to be laid before both Houses of Parliament as soon as practicable after receiving the report. (3) The NSW Commissioner is to include the following matters in the annual report— (a) information on the operation of the complaints process during the year and any recommendations for legislative or other improvements to the complaints process, (b) information about the financial affairs and accounts of the Office of the NSW Legal Services Commissioner (including costs incurred by the NSW Commissioner) during the year, (c) a copy of a certificate of an auditor as to the outcome of any audit carried out under subsection (4) in relation to the year or any previous year if a copy of the certificate has not been included in an earlier annual report under this section, (d) other information or matters that the NSW Commissioner considers appropriate to be included or that the Attorney General directs to be included. (4) Information referred to in subsection (3)(b) is to be audited at least every 2 years. The NSW Commissioner and the Secretary are to enter into arrangements for the audit of the information. (5) Matters included in an annual report must not identify individual clients, Australian lawyers or Australian-registered foreign lawyers unless their names have already lawfully been made public under another provision of this Act or under the Legal Profession Uniform Law (NSW). (6) The annual report need not include information forwarded to the Commissioner for Uniform Legal Services Regulation and included or intended to be included in the Commissioner's annual report under Part 4 of Schedule 2 to the Legal Profession Uniform Law (NSW). Note. Section 440 of that Law deals with the provision of information by local regulatory authorities. 27 Staff of NSW Commissioner (1) Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the NSW Commissioner to exercise his or her functions. Note. Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the NSW Commissioner makes use of) may be referred to as officers or employees, or members of staff, of the NSW Commissioner. Section 47A of the Constitution Act 1902 precludes the NSW Commissioner from employing staff. (2) The NSW Commissioner may arrange for the use of the services of any staff (by secondment or otherwise) or facilities of a government agency or other public authority. (3) The NSW Commissioner may, with the approval of the Attorney General, engage consultants or other persons for the purpose of getting assistance. 28 Delegation of functions of NSW Commissioner (1) The NSW Commissioner may delegate any of his or her functions under this Act (other than this power of delegation) or the Legal Profession Uniform Law (NSW) to any member of the staff of the NSW Commissioner or to a person of a class prescribed by the regulations. (2) The NSW Commissioner may delegate the following functions to the Bar Council or the Law Society Council— (a) any function of the NSW Commissioner under section 137 or 144 of this Act, (b) any of the NSW Commissioner's Chapter 5 functions. Note. Under the Legal Profession Uniform Law (NSW), Chapter 5 functions means— (a) functions under Chapter 5, or (b) functions under another provision of that Law relating to Chapter 5, or (c) functions under the Uniform Rules relating to Chapter 5. Note. Section 406 of the Legal Profession Uniform Law (NSW) provides that a local regulatory authority may delegate its functions under that Law to an entity prescribed by jurisdictional legislation. The local regulations may also prescribe delegates or classes of delegates of local regulatory authorities (see section 166). Division 3 Bar Council 29 Functions of Bar Council In addition to its other functions, the Bar Council may exercise functions conferred or imposed on it or the Bar Association— (a) by the Legal Profession Uniform Law (NSW), or (b) by this Act, or (c) as delegate of the NSW Commissioner. 30 Delegation of functions of Bar Council (1) The Bar Council may delegate any of its functions under this Act (other than this power of delegation) or the Legal Profession Uniform Law (NSW) to any of its committees, to an officer of the Bar Association or to an employee of the Bar Association. (2) For the purposes of this section, the functions of the Bar Council under the Legal Profession Uniform Law (NSW) include any functions delegated to the Bar Council under that Law. Note. Section 406 of the Legal Profession Uniform Law (NSW) provides that a local regulatory authority may delegate its functions under that Law to an entity prescribed by jurisdictional legislation. The local regulations may also prescribe delegates or classes of delegates of local regulatory authorities (see section 166). Division 4 Law Society Council 31 Functions of Law Society Council (1) In addition to its other functions, the Law Society Council may exercise functions conferred or imposed on it or the Law Society— (a) by the Legal Profession Uniform Law (NSW), or (b) by this Act, or (c) as delegate of the NSW Commissioner. (2) The Law Society Council also has the function of disseminating information to increase public awareness of the requirements of this Act, the Legal Profession Uniform Law (NSW) and the Corporations Act 2001 of the Commonwealth relating to solicitors who— (a) are involved in managed investment schemes, or (b) negotiate the making of or act in respect of regulated mortgages. 32 Delegation of functions of Law Society Council (1) The Law Society Council may delegate any of its functions under this Act (other than this power of delegation and the functions referred to in section 119 (Management Committee)) or the Legal Profession Uniform Law (NSW) to any of its committees, to an officer of the Law Society or to an employee of the Law Society. (2) For the purposes of this section, the functions of the Law Society Council under the Legal Profession Uniform Law (NSW) include any functions delegated to the Law Society Council under that Law. Note. Section 406 of the Legal Profession Uniform Law (NSW) provides that a local regulatory authority may delegate its functions under that Law to an entity prescribed by jurisdictional legislation. The local regulations may also prescribe delegates or classes of delegates of local regulatory authorities (see section 166). Division 5 Miscellaneous 33 Lay representation on committees (1) The Attorney General may do either or both of the following— (a) after consultation with the Bar Council, direct, by written order, that any specified committees or kinds of committees of the Bar Association or Bar Council must include in their membership a specified or determinable number of lay members, (b) after consultation with the Law Society Council, direct, by written order, that any specified committees or kinds of committees of the Law Society or Law Society Council must include in their membership a specified or determinable number of lay members. (2) Except as provided by subsection (3), a direction has no effect to the extent that it would require the membership of a committee to have more than one-quarter of its membership composed of lay members. (3) The membership of any professional conduct committee must include at least 3 lay members. (4) A lay member has the voting and other rights and the obligations that are provided in the constitution of the committee or as are provided by the local regulations. Those regulations prevail to the extent of any inconsistency with the constitution of the committee. (5) For the purposes of this section, a lay member is a person who is not an Australian lawyer. 34 Councils to submit annual report (1) As soon as practicable after 30 June (but on or before 31 December) in each year, the Bar Council and the Law Society Council are each required to prepare and forward to the Attorney General a report of their work and activities under this Act for the 12 months ending on 30 June in that year. (2) The Attorney General is to lay the reports, or cause them to be laid, before both Houses of Parliament as soon as practicable after receiving the report. (3) A Council is to include the following information in its annual report— (a) information about the costs incurred by the Council during the reporting year in relation to its regulatory functions, as certified by an auditor, (b) in the case of the Law Society Council—the total amount paid from the Public Purpose Fund and the Fidelity Fund during the year, (c) such other information as may be prescribed by the regulations or as the Attorney General directs to be included. (4) Matters included in a report must not identify individual Australian lawyers unless their names have already lawfully been made public under Part 12. (5) This section does not affect any other provision of this Act requiring a report to be made to the Attorney General. 35 Court appearances A local regulatory authority for this jurisdiction may appear by barrister or solicitor before, and be heard by, any court in any matter affecting the local regulatory authority (or, without limitation, its members in the case of the Bar Association or Law Society Council) in which the local regulatory authority is concerned or interested. Part 4 Practising certificates and registration certificates Division 1 Australian practising certificates 36 Australian practising certificate fees and fidelity fund contributions An application for the grant or renewal of an Australian practising certificate in which the applicant states that New South Wales is the jurisdiction that he or she reasonably intends will be his or her principal place of practice in Australia must be accompanied by— (a) the appropriate fee for the certificate, and (b) the required contribution to the fidelity fund (if any). Note. Applications are made under section 44 of the Legal Profession Uniform Law (NSW). See sections 38 and 39 of this Act for fees for practising certificates, and section 225 of the Legal Profession Uniform Law (NSW) for fidelity fund contributions. 37 Timing of application for renewal of local practising certificate (1) An application for the renewal of a local practising certificate must be made within— (a) the period prescribed by the regulations as the standard renewal period, or (b) a later period prescribed by the regulations as the late fee period. (2) Those periods must be within the currency of the local practising certificate being renewed. (3) The appropriate Council may reject an application for renewal made during the late fee period, and must reject an application for renewal made outside those periods. Note. Section 39 authorises the charging of a late fee for applications received during the late fee period. If an application is rejected under subsection (3), the applicant will have to apply for the grant of a new practising certificate. 38 Fee for practising certificate (1) A fee is payable for the grant or renewal of a local practising certificate of such amount as is determined by the appropriate Council and approved by the Attorney General. (2) A Council may determine different practising certificate fees according to different factors that are specified in the determination and approved by the Attorney General. (3) A Council may waive or postpone payment of the practising certificate fee or any part of the fee. (4) Subject to the local regulations (if any), a Council is to determine the practising certificate fee on a cost recovery basis, with the fee being such amount as is required from time to time for the purpose of recovering the costs of or associated with the regulatory functions of the Council or of the Bar Association or Law Society, as the case requires. (5) The regulatory functions of a Council, the Bar Association or the Law Society are its functions under this Act, and any other functions it exercises that are associated with the regulation of legal practice or maintaining professional standards of legal practice. (6) The practising certificate fee is not to include any charge for membership of the Bar Association or Law Society and is not to include any amount that is required for the purpose of recovering any costs of or associated with providing services or benefits to which local legal practitioners become entitled as members of the Bar Association or Law Society. (7) In addition, in determining the practising certificate fee, a Council must exclude costs that are otherwise recoverable under this Act (for example, costs payable from the Public Purpose Fund under this Act). (8) The local regulations may make provision for or with respect to the determination of practising certificate fees, including by specifying the costs that may or may not be recovered by the charging of practising certificate fees. (9) In this section— costs includes expenses. 39 Late fee (1) This section applies if an application for a local practising certificate is made during the late fee period. (2) Payment of a late fee prescribed by or determined under the regulations may, if the Council thinks fit, be required as a condition of acceptance of the application. 40 Late fee for certain applications for new practising certificates (1) This section applies if an application for the grant of a local practising certificate to have effect during a financial year is made to a Council by a person who was the holder of a local practising certificate granted by the Council in respect of the previous financial year. (2) Payment of an additional fee prescribed by or determined under the regulations may, if the Council thinks fit, be required as a condition of acceptance of the application. 41 Audit of Council activities (1) The Attorney General may appoint an appropriately qualified person to conduct an audit of all or any particular activities of a Council for the purpose of determining the following— (a) whether any activities the costs of which are recoverable, or are proposed to be recovered, by the charging of a practising certificate fee are being carried out economically and efficiently and in accordance with the relevant laws, (b) whether practising certificate fees are being expended for the purpose of defraying the costs in respect of which the fees are charged. (2) A Council is to provide all reasonable assistance to the person appointed to conduct the audit. (3) The person appointed to conduct the audit is to report to the Attorney General on the result of the audit. (4) An audit may be conducted under this section whenever the Attorney General considers it appropriate. (5) In this section— audit includes an examination and inspection. costs includes expenses. Council includes the Bar Association and the Law Society. Division 2 Australian registration certificates 42 Australian registration certificate fees, fidelity fund contributions, and costs and expenses (1) An application to a Council for the grant or renewal of an Australian registration certificate must be accompanied by— (a) the appropriate fee for the certificate, and (b) the required contribution to the fidelity fund (if any). Note. Applications are made under section 62 of the Legal Profession Uniform Law (NSW). See section 225 of the Legal Profession Uniform Law (NSW) for fidelity fund contributions. (2) Different fees may be set according to different factors determined by the relevant Council. (3) The fees are not to be greater than the maximum fees for a local practising certificate. (4) A Council may waive or postpone payment of a fee or any part of a fee. (5) A Council may also require the applicant to pay any reasonable costs and expenses incurred by the relevant Council in considering the application, including (for example) costs and expenses of making inquiries and obtaining information or documents about whether the applicant meets the criteria for registration. (6) The fees, costs and expenses must not include any component for compulsory membership of any professional association. Division 3 General 43 Attorney General The Attorney General, while admitted to the legal profession in this or any other jurisdiction, is entitled to an unconditional practising certificate. The Attorney General may elect to hold a practising certificate as a barrister or as a solicitor. 44 Crown Solicitor (1) The Crown Solicitor may, in his or her official capacity, act as solicitor for— (a) the State of New South Wales, or (b) a person suing or being sued on behalf of the State of New South Wales, or (c) a Minister of the Crown in his or her official capacity as such a Minister, or (d) a body established by an Act or other law of New South Wales, or (e) an officer or employee of the Public Service or any other service of the State of New South Wales or of a body established by an Act or other law of New South Wales, or (f) a person holding office under an Act or other law of New South Wales or because of the person's appointment to that office by the Governor or a Minister of the Crown, or (g) any other person or body, or any other class of persons or bodies, approved by the Attorney General. (2) The Crown Solicitor may act under subsection (1)— (a) with or without charge, or (b) for a party in a matter that is not the subject of litigation, even if also acting under that subsection for another party in the matter. (3) The Crown Solicitor may, in his or her official capacity, act as agent for— (a) another State or a Territory, or (b) at the request of another State or a Territory—an instrumentality of, or a person in the service of, that State or Territory. (4) If, under subsection (1)(g), the Crown Solicitor is given approval to act as solicitor for a Minister of the Crown (otherwise than in his or her official capacity as such a Minister), the following must be included in the annual reporting information prepared under the Government Sector Finance Act 2018 of the Crown Solicitor's activities— (a) the name of the Minister, (b) the matter in which the Crown Solicitor acted (but without disclosure of any confidential client information), (c) the costs incurred by the Crown Solicitor in acting for the Minister and the amount charged to the Minister for so acting. (5) In this section, a reference to a State or a Territory includes a reference to the Crown in right of the State or Territory and to the Government of the State or Territory. 45 Government lawyers (1) The local regulations may make provision for or with respect to— (a) exempting persons or classes of persons from the requirement to hold Australian practising certificates, either generally or for specified periods, in respect of their official functions as government lawyers, and (b) without limitation, excluding or modifying the operation of specified provisions of, or made under, the Legal Profession Uniform Law (NSW) (including provisions of Parts 2.2 and 3.3 of that Law) to the extent that any of those provisions would otherwise be applicable to any persons, or classes of persons, as government lawyers. Note. See section 56 of the Legal Profession Uniform Law (NSW). (2) Government lawyers (including Crown prosecutors, public defenders, parliamentary counsel or other statutory Crown law officers) may be granted an Australian practising certificate with a condition that the holder is authorised to engage in legal practice as or in the manner of a barrister only. 45A Corporate lawyers (1) The local regulations may make provision for or with respect to— (a) exempting persons or classes of persons from the requirement to hold Australian practising certificates, either generally or for specified periods, in respect of their functions as corporate lawyers, and (b) without limitation, excluding or modifying the operation of specified provisions of, or made under, the Legal Profession Uniform Law (NSW) (including provisions of Parts 2.2 and 3.3 of that Law) to the extent that any of those provisions would otherwise be applicable to any persons, or classes of persons, as corporate lawyers. (2) In this section, corporate lawyer means a person who engages in legal practice only— (a) as an employee who provides legal services in the capacity of an in-house lawyer for his or her employer or a related entity, and (b) if he or she— (i) so acts in the ordinary course of his or her employment, and (ii) receives no fee, gain or reward for so acting other than his or her ordinary remuneration as an employee, but does not include a government lawyer. Part 5 Trust accounts and Public Purpose Fund Division 1 Trust accounts—statutory deposits 46 Statutory deposits (1) The local regulations may require a law practice to pay amounts out of a general trust account of the law practice into an ADI account maintained by the Law Society. (2) Without limiting subsection (1), the local regulations may provide for the following— (a) the type of account to be maintained by the Law Society, (b) the amount of the payments to be made. (3) All interest on the money in a general trust account is payable to the Law Society on account of the Public Purpose Fund. (4) This section applies despite any other provision of this Part or Part 4.2 of the Legal Profession Uniform Law (NSW). 47 Status and repayment of deposited money (1) Money paid under section 46 into an ADI account maintained by the Law Society— (a) is held by the Law Society in trust for the law practice depositing the money, and (b) is repayable on demand. (2) Subsection (1) does not excuse a failure to comply with section 46. (3) Until repaid, money deposited under section 46 may be invested by the Law Society— (a) in accordance with Division 2 of Part 2 of the Trustee Act 1925 as if the money were trust funds, or (b) on deposit with the Treasurer, or (c) in an account with any ADI. (4) All interest on investments made under this section is payable to the Law Society on account of the Public Purpose Fund. Division 2 Public Purpose Fund 48 Public Purpose Fund (1) There is to be established a fund called the Public Purpose Fund. (2) The following amounts are to be paid to the credit of the Fund— (a) interest payable to the Law Society on account of the Public Purpose Fund under sections 46, 47 and 50, (b) such other amounts as are payable to the Fund by or under this Act. 49 Trustees of the Public Purpose Fund (1) There are to be Trustees of the Public Purpose Fund (in this Part, the Trustees). (2) The Trustees consist of— (a) 4 persons appointed by the Attorney General, of whom— (i) 2 are to be members of the Law Society Council nominated by the President of the Law Society, and (ii) 1 is to be a person whom the Attorney General considers to have the financial and investment expertise to act as a trustee, and (iii) 1 is to be a person whom the Attorney General considers to have appropriate qualifications and experience to act as a trustee, and (b) the Secretary. (3) Schedule 5 contains provisions relating to the Trustees. 50 Management and control of Fund (1) The Trustees are to manage and control the Public Purpose Fund. (2) The Trustees may invest any amount standing to the credit of the Fund in accordance with Division 2 of Part 2 of the Trustee Act 1925 as if the money were trust funds. (3) The Trustees may enter into any agreement or arrangement with a person or body under which— (a) the person or body provides the Trustees with advice concerning the investment of any amount standing to the credit of the Fund, or (b) the person or body agrees to invest any such amount on behalf of the Trustees. (4) The Law Society is to administer the Fund on behalf of, and in accordance with the directions of, the Trustees. 50A Community legal services account (1) The Trustees are to establish a separate account (the community legal services account) in the Public Purpose Fund for money paid to the Fund— (a) from the assets of the Solicitors Mutual Indemnity Fund under clause 12 of Schedule 9, and (b) under clause 18 of Schedule 9. (2) Payments are not to be made from the capital of the community legal services account other than for the purposes of the investment of amounts in accordance with section 50. (3) The income from investment of the community legal services account is to be allocated to that account. 51 Arrangements with ADIs The Trustees are, without limitation, authorised to enter into arrangements with an ADI that are of the kind referred to in section 149(1)(b) of the Legal Profession Uniform Law (NSW). 52 Payments from Fund (1) The Trustees are to pay from the Public Purpose Fund the following— (a) any amounts payable from the Fund for a purpose referred to in section 53 (Payment of certain costs from Fund), in accordance with the approval of the Secretary under that section, (b) any amounts that the Trustees, with the concurrence of the Attorney General, determine should be paid from the Fund for a purpose referred to in section 55 (Discretionary payments from Fund for other purposes), (c) any amounts required to be paid from the Fund in accordance with an order of NCAT under clause 23(3) of Schedule 5 to the Civil and Administrative Tribunal Act 2013, (d) any costs or expenses incurred in collecting the interest payable to the Fund and in the management or administration of the Fund. (2) Payments from the Public Purpose Fund may be made from the capital or income of the Fund, at the discretion of the Trustees. (3) The fact that money is paid out of the Public Purpose Fund under this section does not preclude the recovery of that money in accordance with this Act from any person liable to pay the money. Any such money recovered must be paid to the credit of the Public Purpose Fund. 53 Payment of certain costs from Fund (1) Payments are to be made from the Public Purpose Fund, in accordance with this section and subject to section 55, for the purpose of meeting the following costs and expenses— (a) the costs of a Council in making representations, or being represented or heard, under section 21, (b) the costs of a Council in exercising functions under Part 3.3 of the Legal Profession Uniform Law (NSW), including in responding to any appeal or review arising in relation to functions under that Part, (c) the costs of a Council in exercising functions under Parts 3.4, 3.5 and 3.6 of the Legal Profession Uniform Law (NSW), including in responding to any appeal or review arising in relation to functions under those Parts, (d) the costs of the NSW Commissioner or a Council in taking action under Part 9.6 of the Legal Profession Uniform Law (NSW), (e) the costs of the NSW Commissioner or a Council relating to compliance with a condition to which an Australian registration certificate is subject under Division 4 of Part 3.4 of the Legal Profession Uniform Law (NSW), (f) the costs of a Council in exercising functions under— (i) section 80 and Parts 3.7, 3.9 and 4.5 of the Legal Profession Uniform Law (NSW), and (ii) Part 9 of this Act, (g) the costs of the Law Society Council (including its members, employees or agents) in respect of an external examination or external investigation under Part 4.2 of the Legal Profession Uniform Law (NSW), to the extent that those costs are not recoverable under section 160 or 166 of that Law, (h) the costs of the NSW Admission Board in connection with an appeal under Division 3 of Part 2.2 of the Legal Profession Uniform Law (NSW), (i) the costs of a Council in connection with an external intervention in relation to a law practice (including costs in connection with an application under section 341 of the Legal Profession Uniform Law (NSW) or an appeal or review under section 358 of that Law) and any fees, costs and expenses payable from the Fund under section 365 of that Law, (j) the costs of the NSW Commissioner or NCAT in relation to the administration of Chapter 5 of the Legal Profession Uniform Law (NSW), (k) the costs of the NSW Commissioner or Council in exercising functions for the purposes of Chapter 5 of the Legal Profession Uni