Queensland: Legal Profession Act 2007 (Qld)

Legal Profession Act 2007 An Act to provide for admission to, and the regulation of, the legal profession, and for entities involving members of the legal profession, and for other purposes Chapter 1 Introduction Part 1.1 Preliminary 1 Short title This Act may be cited as the Legal Profession Act 2007. 2 Commencement This Act, other than the following provisions, commences on a day to be fixed by proclamation— • part 3.2, divisions 1 to 4, other than sections 217, 223 and 226 • part 7.6, division 6, other than section 698. 3 Main purposes The main purposes of this Act are as follows— (a) to provide for the regulation of legal practice in this jurisdiction in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally; (b) to facilitate the regulation of legal practice on a national basis across State borders. Part 1.2 Interpretation Division 1 Dictionary 4 Definitions The dictionary in schedule 2 defines particular words used in this Act. Division 2 Meaning of various terms 5 Terms relating to lawyers (1) An Australian lawyer is a person who is admitted to the legal profession under this Act or a corresponding law. (2) A local lawyer is a person who is admitted to the legal profession under this Act, whether or not the person is also admitted under a corresponding law. (3) An interstate lawyer is a person who is admitted to the legal profession under a corresponding law, but not under this Act. (4) In this section— this Act includes a previous Act. 6 Terms relating to legal practitioners (1) An Australian legal practitioner is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate. (2) A local legal practitioner is an Australian lawyer who holds a current local practising certificate. (3) An interstate legal practitioner is an Australian lawyer who holds a current interstate practising certificate, but not a local practising certificate. 7 Terms relating to associates and principals of law practices (1) An associate, of a law practice, is— (a) an Australian legal practitioner who is— (i) a sole practitioner if the law practice is constituted by the practitioner; or (ii) a partner in the law practice if the law practice is a law firm; or (iii) a legal practitioner director in the law practice if the law practice is an incorporated legal practice; or (iv) a legal practitioner partner in the law practice if the law practice is a multi-disciplinary partnership; or (v) an employee of, or consultant to, the law practice; or (b) an agent of the law practice who is not an Australian legal practitioner; or (c) an employee of the law practice who is not an Australian legal practitioner; or (d) an Australian-registered foreign lawyer who is a partner in the law practice; or (e) a person who is a partner in the multi-disciplinary partnership but who is not an Australian legal practitioner; or (f) an Australian-registered foreign lawyer who has a relationship with the law practice, that is a class of relationship prescribed under a regulation. (2) A legal practitioner associate, of a law practice, is an associate of the practice who is an Australian legal practitioner. (3) A lay associate, of a law practice, is an associate of the practice who is not an Australian legal practitioner. (4) A principal, of a law practice, is an Australian legal practitioner who is— (a) a sole practitioner if the law practice is constituted by the practitioner; or (b) a partner in the law practice if the law practice is a law firm; or (c) a legal practitioner director in the law practice if the law practice is an incorporated legal practice; or (d) a legal practitioner partner in the law practice if the law practice is a multi-disciplinary partnership. 8 Home jurisdiction (1) The home jurisdiction, for an Australian legal practitioner, is the jurisdiction in which the practitioner's only or most recent current Australian practising certificate was granted. (2) The home jurisdiction, for an Australian-registered foreign lawyer, is the jurisdiction in which the lawyer's only or most recent current registration was granted. (3) The home jurisdiction, for an associate of a law practice who is neither an Australian legal practitioner nor an Australian-registered foreign lawyer, is— (a) if only 1 jurisdiction is the home jurisdiction for the only associate of the practice who is an Australian legal practitioner or for all the associates of the practice who are Australian legal practitioners—that jurisdiction; or (b) if no 1 jurisdiction is the home jurisdiction for all the associates of the practice who are Australian legal practitioners— (i) the jurisdiction in which the office is situated at which the associate performs most of his or her duties for the practice; or (ii) if a jurisdiction can not be decided under subparagraph (i)—the jurisdiction in which the associate is enrolled under a law of the jurisdiction to vote at elections for the jurisdiction; or (iii) if a jurisdiction can not be decided under subparagraph (i) or (ii)—the jurisdiction decided under criteria prescribed under a regulation. 9 Suitability matters (1) Each of the following is a suitability matter in relation to a natural person— (a) whether the person is currently of good fame and character; (b) whether the person is or has been an insolvent under administration; (c) whether the person is or has been a legal practitioner director of an incorporated legal practice while the practice is or was a chapter 5 body corporate; (d) whether the person is or has been a director of a corporation while the corporation is or was a chapter 5 body corporate; (e) whether the person has been convicted of an offence in Australia or a foreign country, and if so— (i) the nature of the offence; and (ii) how long ago the offence was committed; and (iii) the person's age when the offence was committed; (f) whether the person engaged in legal practice in Australia— (i) when not admitted to the legal profession, or not holding a practising certificate, as required under a relevant law or a corresponding law; or (ii) if admitted to the legal profession, in contravention of a condition on which admission was granted; or (iii) if holding an Australian practising certificate, in contravention of a condition applicable to the certificate or while the certificate was suspended; (g) whether the person has practised law in a foreign country— (i) when not permitted under a law of that country to do so; or (ii) if permitted to do so, in contravention of a condition of the permission; (h) whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following— (i) a relevant law; (ii) a corresponding law; (iii) a corresponding foreign law; (i) whether the person— (i) is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country; or (ii) has been the subject of disciplinary action, however expressed, relating to another profession or occupation that involved a finding of guilt; (j) whether the person's name has been removed from— (i) a local roll but has not since been restored to or entered on a local roll; or (ii) an interstate roll, but has not since been restored to or entered on an interstate roll; or (iii) a foreign roll; (k) whether the person's right to engage in legal practice has been suspended or cancelled in Australia or a foreign country; (l) whether the person has contravened, in Australia or a foreign country, a law about trust money or trust accounts; (m) whether, under a relevant law, a law of the Commonwealth or a corresponding law, a supervisor, manager or receiver, however described, is or has been appointed in relation to any legal practice engaged in by the person; (n) whether the person is or has been subject to an order under this Act, a previous Act, a law of the Commonwealth or a corresponding law, disqualifying the person from being employed by, or a partner of, an Australian legal practitioner or from managing a corporation that is an incorporated legal practice; (o) whether the person currently is unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner; (p) a matter declared under an Act to be a suitability matter. (2) A matter under subsection (1) is a suitability matter even though it happened before the commencement of this section. 10 Information notices (1) An information notice is a written notice to a person about a decision relating to the person stating— (a) if the person may apply to the tribunal for a review of the decision—the matters mentioned in the QCAT Act, section 157(2); or (b) otherwise— (i) the decision; and (ii) the reasons for the decision; and (iii) if the person may appeal under this Act, that the person may appeal against the decision to the Supreme Court and the day by which the appeal must be started. (2) A provision under this Act may provide that an information notice relevant to the provision must include other stated information. (3) If a person may apply for a review, or appeal, within a number of days after the day the information notice is given to the person, a defect in the notice does not affect the person's right to apply for review or to appeal in relation to the matters dealt with in the information notice. 11 References to convictions for offences (1) A conviction, for an offence, includes either of the following whether or not a conviction is recorded on sentence— (a) a finding of guilt; (b) the acceptance of a guilty plea. (2) Without limiting subsection (1), quashing a conviction, for an offence— (a) includes quashing— (i) a finding of guilt for the offence; or (ii) the acceptance of a guilty plea for the offence; and (b) does not include quashing a conviction if— (i) a finding of guilt in relation to the offence remains unaffected; or (ii) the acceptance of a guilty plea in relation to the offence remains unaffected. (3) A conviction includes a conviction before the commencement of this section. Note— See also the Criminal Law (Rehabilitation of Offenders) Act 1986, section 9A, table, items 24 and 25. 12 Meaning of government legal officer and engaged in government work and related matters (1) A government legal officer is a person whose employment or appointment in any of the following includes or may include engaging in legal practice— (a) a department of this jurisdiction, the commission, or an agency prescribed under a regulation; Note— Under the Public Sector Act 2022, section 274, this Act applies to a public service entity mentioned in the Public Sector Act 2022, section 9(b) and its employees as if the entity were a department. (b) a department of government of the Commonwealth; (c) a department of government of another jurisdiction; (d) an agency of another jurisdiction if, under a corresponding law of that jurisdiction, a person engaging in legal practice for the agency is exempted from holding a practising certificate or otherwise does not require a practising certificate. (2) A government legal officer is engaged in government work when the government legal officer is engaged in legal practice in the course of the officer's duties for the entity in relation to which the person is an employee or appointee. Example of engaged in government work— A public service officer employed by the Department of Justice and Attorney-General is engaged in legal practice at the Department of Education. The officer's duties for the Department of Justice and Attorney-General while working at the Department of Education include providing advice to that department as a client of the Department of Justice and Attorney-General. (3) For an agency prescribed for subsection (1)(a), a regulation may state activities that are, or are not, government work. (4) If a provision under this Act does not apply to a government legal officer engaged in government work, the provision applies to the person who is the government legal officer if the person is engaging in legal practice other than being engaged in government work. (5) If a government legal officer holds a practising certificate from the bar association, a condition of the barrister's practising certificate about only practising as a barrister does not apply to the government legal officer to the extent that the government legal officer practises as a solicitor as part of engaging in government work. (6) A government legal officer who is an Australian lawyer does not have any fewer rights, privileges, protections or immunities than an Australian lawyer who is not a government legal officer. (7) A government legal officer who is not an Australian lawyer is subject to the same limitations and obligations to which a government legal officer who is an Australian lawyer is subject. (8) The provisions of this Act about the fidelity fund do not apply to a government legal officer in his or her capacity as a government legal officer engaged in government work even if the government legal officer is the holder of a practising certificate. (9) A government legal officer who is an Australian lawyer but does not hold a current local practising certificate may— (a) if the officer was admitted to the legal profession as a barrister before 1 July 2004 or engages in government work in the manner of a barrister—call himself or herself a barrister or another term that describes the way the officer engages in government work; or (b) if the officer was admitted to the legal profession as a solicitor before 1 July 2004 or engages in government work in the manner of a solicitor—call himself or herself a solicitor or another term that describes the way the officer engages in government work. (10) Without limiting another subsection, if under an Act an Australian lawyer is allowed to witness a document even though the lawyer does not hold a current local practising certificate— (a) nothing in this section prevents a government legal officer who is an Australian lawyer but does not hold a current local practising certificate from witnessing the document; and (b) when witnessing the document, the government legal officer may include a description or title that is correct at the time, including, for example— (i) the title of lawyer or Australian lawyer; or (ii) another title involving the government legal officer's employment or appointment as mentioned subsection (1). (11) For a person whose employment or appointment in a department of government of the Commonwealth includes or may include engaging in legal practice as mentioned in subsection (1)(b), this Act is subject to the Judiciary Act 1903 (Cwlth). Division 3 Jurisdiction of Supreme Court and related matters 13 Inherent jurisdiction of Supreme Court (1) The inherent jurisdiction and power of the Supreme Court in relation to the control and discipline of local lawyers and local legal practitioners is not affected by anything in this Act. (2) The inherent jurisdiction and power— (a) extends to an interstate legal practitioner as mentioned in section 78; and (b) may be exercised by making— (i) any order the committee may make under this Act; or (ii) any order or direction the tribunal may make under this Act or the QCAT Act. 14 Jurisdiction of Supreme Court (1) The Supreme Court must hear and decide each application and appeal made to it under this Act and may make the order it considers appropriate for the application or appeal. (2) Subsection (1) is subject to a provision that states the orders that may be made by the court on an application or appeal. (3) This section does not limit section 13. (4) An Australian lawyer is entitled to appear before and be heard by the Supreme Court at a hearing about an application or appeal as mentioned in subsection (1) that is made in relation to the lawyer under this Act. 15 Appeal period for appeal to Supreme Court (1) This section applies if a provision of this Act provides that a person has a stated number of days to appeal to the Supreme Court (the appeal period). (2) The court may allow a person who may appeal within the appeal period to appeal after that appeal period if the court considers it appropriate having regard to the extent of, and reasons for, the delay. 16 Hearing and deciding particular action without a jury (1) This section applies if an action in relation to any description of civil liability arising out of the business of practising as an Australian legal practitioner is before a court and any person who may be made liable in that action is indemnified under a contract of insurance under a relevant law. (2) If, apart from this section, the action may be heard and decided by a jury in that court, the action must be heard and decided by a judge without a jury. Division 4 Other interpretation matters 17 Notes in text may indicate difference to language in corresponding law A note in the text in this Act is sometimes used to indicate why the language in this Act may be different to the language used in corresponding laws. Example— This Act often refers to a law of this jurisdiction, including this Act. Under the Acts Interpretation Act 1954, section 7, the reference to a law includes a reference to statutory instruments made or in force under the law. Accordingly, a reference to this Act includes, for example, a regulation or legal profession rules made or in force under this Act. 18 Timing for doing things If no time is provided or allowed for doing something under this Act, the thing is to be done as soon as practicable, and as often as is required. 19 Grounds that are reasonable in the circumstances (1) If, under this Act, a person is required to be satisfied or not satisfied of, or have a belief or suspicion about, a particular matter before the person may do or refrain from doing an act, or make a decision, the person must be satisfied or not satisfied or have the belief or suspicion on grounds that are reasonable in the circumstances. (2) If, under this Act, a person who is satisfied or not satisfied of, or has a belief or suspicion about, a particular matter is required to do or refrain from doing an act, or make a decision, the person must be satisfied or not satisfied, or have the belief or suspicion, on grounds that are reasonable in the circumstances. (3) If, under this Act, an entity is required to consider that a particular matter is appropriate before the entity may do or refrain from doing an act or make a decision, the entity must not do or refrain from doing the act, or make the decision, unless the entity considers the particular matter is appropriate on grounds that are reasonable in the circumstances. (4) The following are examples of entities for subsection (3)— (a) a disciplinary body; (b) the board; (c) a regulatory authority; (d) the commissioner; (e) an investigator. 20 References to parts in this Act (1) A reference in this Act to a part by a number is a reference to the part, designated by that number, of this Act. (2) A reference under another Act to a part of this Act by a number without reference to a chapter is a reference to the part, designated by that number, in this Act. Chapter 2 General requirements for engaging in legal practice Part 2.1 Preliminary 21 Simplified overview of ch 2 (1) Generally, this chapter seeks to achieve the main purposes of this Act by providing that— (a) legal practice is engaged in only by persons who are properly qualified and hold a current practising certificate; and (b) only persons who are eligible and fit and proper persons for admission to the legal profession are admitted; and (c) an Australian lawyer may obtain a local practising certificate from the law society or bar association and become a local legal practitioner; and (d) police reports and health assessment reports may be obtained for purposes stated in this Act; and (e) the regulation of legal practice on a national basis is promoted by providing for inter-jurisdictional provisions regarding admission to the legal profession and practising certificates; and (f) a corporation may engage in legal practice as an incorporated legal practice while it has a legal practitioner director, and a partnership, consisting of at least 1 partner who is not an Australian legal practitioner, may engage in providing legal services in this jurisdiction if there is at least 1 legal practitioner partner; and (g) foreign lawyers may practise foreign law in this jurisdiction as a recognised aspect of legal practice in this jurisdiction to encourage and facilitate the internationalisation of legal services and the legal services sector. (2) Subsection (1) is intended only as a guide to readers as to the general scheme of this chapter. Part 2.2 Reservation of legal work Division 1 Preliminary 22 Main purposes for pt 2.2 The main purposes of this part are as follows— (a) to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified to do so; (b) to protect consumers by ensuring that persons carrying out legal work are entitled to do so. 23 Part does not apply to a person if authorised under a Commonwealth law or a government legal officer (1) This part does not apply to— (a) a person authorised to engage in legal practice under a law of the Commonwealth; or (b) a government legal officer engaged in government work. (2) However, subsection (1) does not prevent this part applying to a person only because the person has been enrolled as a barrister or solicitor, as a barrister and solicitor or as a legal practitioner, of the High Court of Australia. Division 2 Prohibitions 24 Prohibition on engaging in legal practice when not entitled (1) A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner. Maximum penalty—300 penalty units or 2 years imprisonment. (2) Subsection (1) does not apply to engaging in legal practice of the following kinds— (a) legal practice engaged in under the authority of a law of this jurisdiction or the Commonwealth; (b) legal practice engaged in by an incorporated legal practice under part 2.7; (c) the practice of foreign law by an Australian-registered foreign lawyer under part 2.8; (d) work performed by a trustee company, or a person employed by a trustee company, in the course of— (i) preparing a will; or (ii) carrying out any other activities involving the administration of trusts, the estate of a living or deceased person or the affairs of a living person; (e) legal practice prescribed under a regulation. (3) Also, subsection (1) does not apply to an Australian lawyer if the lawyer— (a) has applied under section 49 to the law society for a local practising certificate and has not been given a notice that the law society has refused to grant the application, or refused to consider the application, as mentioned in section 51; and (b) is employed in or by a law practice and the lawyer has informed the law practice that he or she has applied for, but not yet been granted, a local practising certificate by the law society. (3A) It is declared that neither a POA licensee nor a POA employee is engaging in legal practice only because the licensee or employee provides, prepares or completes a property contract or other document as part of performing either of the following (each of which is a POA licensee's work)— (a) the work of a POA licensee; (b) other work ancillary or incidental to the work of a POA licensee and part of the ordinary course of business undertaken generally by a POA licensee. (3B) However, a POA licensee's work does not include— (a) giving legal advice in relation to a property contract or other document; or (b) providing, preparing or completing a document prescribed under a regulation. (3C) For subsection (3A), it is immaterial that a fee is charged by the POA licensee for a transaction in relation to which the POA licensee or POA employee provides, prepares or completes a property contract or other document. (3D) However, it is material as to whether or not a person who is a POA licensee or POA employee is engaging in legal practice in this jurisdiction if the person commits an offence against the Property Occupations Act 2014, section 219. (3E) A POA licensee or POA employee prepares or completes a property contract or other document— (a) by inserting information in a blank space, or crossing or leaving out an alternative included, in the property contract or other document; or (b) by inserting a term into, or altering a term of, the property contract or other document if— (i) the insertion or alteration— (A) is authorised by a party to the proposed property contract or other document as an insertion or alteration; or (B) is given in writing to the licensee or employee by a party to the proposed property contract or other document as an insertion or alteration; or (C) was previously prepared by an Australian legal practitioner, whether or not in connection with the property contract or other document; and Note for subsubparagraph (C)— The provision allows the use of a precedent. (ii) the licensee or employee does not change the insertion or alteration except in relation to— (A) changing a detail about the transaction that is the subject of the property contract or other document; or (B) crossing or leaving out an alternative, or changing the grammatical form of words, of the insertion or alteration. Example of preparing or completing a property contract— A POA licensee gives a property contract to a seller to sign. The licensee has prepared or completed the property contract by printing the relevant form from the REIQ website and by filling in required details, including the names and addresses of the seller and buyer and the address and description of the property. The licensee also crossed out words when there were alternatives set out in the property contract. Also the POA licensee inserted 2 special conditions into the property contract. The first special condition is one the seller gave to the licensee because the property is located within a gated community and the condition related to the standard covenants for the community. The second special condition is about financing and the licensee used a special condition known by the POA licensee to have been prepared by an Australian legal practitioner for another transaction but changed details to ensure the property contract read properly. (4) A person is not entitled to recover any amount in relation to anything the person did in contravention of subsection (1). (5) A person may recover from someone else (the other person), as a debt due to the person, any amount the person paid to the other person for anything the other person did in contravention of subsection (1). (6) A regulation may make provision about the application, with or without stated changes, of provisions of this Act to persons engaged in legal practice of a kind mentioned in subsection (2) other than paragraphs (a) and (b). (7) In this section— other document means— (a) an approved form, under an Act, relevant to a POA licensee's work; or (b) a document provided, prepared or completed as part of a POA licensee's work in connection with transactions relevant to a property contract; but does not include a property contract or a document of a kind prescribed under a regulation as mentioned in subsection (3B)(b). POA employee means a real estate salesperson under the Property Occupations Act 2014, whether or not the real estate salesperson is also a property agent under that Act. POA licensee means an auctioneer, real estate agent or resident letting agent under the Property Occupations Act 2014. property contract means— (a) a form of contract or agreement generally recognised and accepted for use by POA licensees when carrying out activities authorised by the Property Occupations Act 2014 in dealing with real property or an interest in real property; or (b) a form of contract or agreement, or a proposed contract or agreement, relating to real property or an interest in real property that was previously prepared by an Australian legal practitioner. trustee company see the Trustee Companies Act 1968, section 4. 24A Moving applications for admission (1) This section applies to a person who is both a government legal officer and an Australian lawyer, whether or not the person is an Australian legal practitioner. (2) Also, this section applies to— (a) a person who— (i) is an Australian lawyer employed by a corporation other than an incorporated legal practice; and (ii) holds a practising certificate subject to a condition that the person must not engage in legal practice other than for providing in-house legal services; or (b) a person who— (i) is an Australian lawyer; and (ii) is a volunteer at a community legal service; and (iii) holds a practising certificate subject to a condition that the person must not engage in legal practice other than as a volunteer at a community legal service. (3) Despite section 24(1), the person may move an application for admission if, and only if, the board has, under the admission rules, recommended the applicant's admission without conditions. (4) The person does not fail to comply with any of the following conditions of the person's practising certificate merely because the person moves an application for admission under subsection (3)— (a) a condition that the person must not engage in legal practice other than as a government legal officer engaged in government work; (b) a condition that the person may engage in legal practice other than as a government legal officer engaged in government work if the legal practice is limited to legal practice as a volunteer at a community legal service; (c) a condition mentioned in subsection (2)(a)(ii) or (b)(iii). (5) In this section— volunteer, at a community legal service, means a person who provides legal services for the community legal service under an arrangement that does not entitle the person to be paid an amount of money for the provision of the legal services. 25 Prohibition on representing or advertising entitlement to engage in legal practice when not entitled (1) A person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner. Maximum penalty—300 penalty units or 2 years imprisonment. (2) A director, officer, employee or agent of a body corporate must not represent or advertise that the body corporate is entitled to engage in legal practice unless the body corporate is an incorporated legal practice. Maximum penalty—300 penalty units or 2 years imprisonment. (3) Subsections (1) and (2) do not apply to a representation or advertisement about a person being entitled to engage in legal practice as mentioned in section 24(2). (4) Also, subsection (1) does not apply to a representation or advertisement about a person being entitled to engage in legal practice as mentioned in section 24(3). (5) A reference in this section to a person— (a) representing or advertising that the person is entitled to engage in legal practice; or (b) representing or advertising that a body corporate is entitled to engage in legal practice; includes a reference to the person doing anything that states or implies the person or the body corporate is entitled to engage in legal practice. 26 Associates who are disqualified or convicted persons (1) A law practice must not have a lay associate whom any principal or legal practitioner associate of the practice knows to be either of the following unless the lay associate is approved by the law society under subsection (2)— (a) a disqualified person; (b) a person who has been convicted of a serious offence. (2) The law society may, on application, approve a person as a lay associate for this section. (3) An approval under this section may be subject to stated conditions. (4) If the law society refuses an application mentioned in subsection (2) or imposes a condition on the approval— (a) the law society must give the applicant an information notice about the decision to refuse the application or to impose the condition; and (b) the applicant may apply, as provided under the QCAT Act, to the tribunal for a review of the decision. (5) A disqualified person, or a person convicted of a serious offence, must not seek to become a lay associate of a law practice unless the person first informs the law practice of the disqualification or conviction. Maximum penalty—200 penalty units. (6) This section does not apply in circumstances prescribed under a regulation. (7) In this section— lay associate, in relation to a law practice, includes a consultant to the law practice, however described— (a) who is not an Australian legal practitioner; and (b) who provides legal or related services to the law practice, other than services prescribed under a regulation. Note— The term 'lay associate' is also defined in section 7(3). Division 3 General 27 Professional discipline (1) A contravention of this part by an Australian lawyer who is not an Australian legal practitioner is capable of constituting unsatisfactory professional conduct or professional misconduct. (2) Nothing in this part affects any liability that a person who is an Australian lawyer but not an Australian legal practitioner may have under chapter 4, and the person may be punished for an offence under this part as well as being dealt with under chapter 4 in relation to the same matter. Part 2.3 Admission of local lawyers Division 1 Preliminary 28 Main purposes of pt 2.3 The main purposes of this part are as follows— (a) in the interests of the administration of justice and for the protection of consumers of legal services, to provide a system under which only applicants who have appropriate academic qualifications and practical legal training and who are otherwise fit and proper persons to be admitted to the legal profession are qualified for admission to the legal profession under this Act; (b) to provide for the recognition of equivalent qualifications and training that apply to applicants for admission to the legal profession in other jurisdictions. 29 Definitions for pt 2.3 In this part— admission rules means the rules under the Supreme Court of Queensland Act 1991, section 85, for admission to the legal profession under this Act and for associated matters. applicant for admission means a person who makes an application for admission. application for admission means an application under section 34 for admission to the legal profession under this Act. Supreme Court, in relation to an exercise of power of the court, means— (a) if the admission rules provide that the power may be exercised by a single Supreme Court judge—a single Supreme Court judge; or (b) otherwise—the Court of Appeal. Division 2 Eligibility and suitability for admission 30 Eligibility for admission to the legal profession under this Act (1) A person is eligible for admission to the legal profession under this Act only if the person— (a) is a natural person aged 18 years or more; and (b) has attained approved academic qualifications or corresponding academic qualifications; and (c) has satisfactorily completed approved practical legal training requirements or corresponding practical legal training requirements; and (d) has sufficient knowledge of written and spoken English to engage in legal practice. (2) In this section— approved academic qualifications means academic qualifications that are approved under the admission rules for admission to the legal profession under this Act. approved practical legal training requirements means legal training requirements that are approved under the admission rules for admission to the legal profession under this Act. corresponding academic qualifications means academic qualifications that would qualify the person for admission to the legal profession in another jurisdiction if the board is satisfied that substantially the same minimum criteria apply for the approval of academic qualifications for admission in the other jurisdiction as apply in this jurisdiction. corresponding practical legal training requirements means legal training requirements that would qualify the person for admission to the legal profession in another jurisdiction if the board is satisfied that substantially the same minimum criteria apply for the approval of legal training requirements for admission in the other jurisdiction as apply in this jurisdiction. Note— The board is the Legal Practitioners Admissions Board. 31 Suitability for admission (1) A person is suitable for admission to the legal profession under this Act only if the person is a fit and proper person to be admitted. (2) In deciding if the person is a fit and proper person to be admitted, the Supreme Court must consider— (a) each of the suitability matters in relation to the person to the extent a suitability matter is appropriate; and (b) other matters that the Supreme Court considers relevant. (3) However, the Supreme Court may consider a person to be a fit and proper person to be admitted to the legal profession under this Act despite a suitability matter because of the circumstances relating to the matter. 32 Early consideration of suitability (1) This section applies if a person considers a matter may adversely affect an assessment as to whether the person is a fit and proper person to be admitted to the legal profession under this Act. (2) The person may apply, in the approved form, to the board for a declaration that a matter stated in the application, including, for example, a suitability matter, will not, without more, adversely affect the board's assessment as to whether the person is a fit and proper person to be admitted to the legal profession under this Act. (3) The board must consider the application and do 1 of the following— (a) make the declaration; (b) refer the application to the tribunal for a direction if the board considers a direction would be appropriate; (c) refuse to make the declaration. (4) A declaration made under subsection (3)(a), or under a direction mentioned in subsection (3)(b), is binding on the board unless the applicant failed to make a full and fair disclosure of all matters relevant to the declaration sought. (5) If the board decides to refuse to make the declaration sought— (a) the board must give the applicant an information notice about the refusal; and (b) the applicant may appeal to the Supreme Court against the refusal within 28 days after the day the information notice is given to the applicant. 33 Involvement of tribunal and Supreme Court (1) If an application under section 32(2) is referred to the tribunal as mentioned in section 32(3)(b), the tribunal may give a direction to the board as the tribunal considers appropriate. (2) If the applicant appeals to the Supreme Court against the decision of the board to refuse to make the declaration, the appeal is to be by way of rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the board may be given on the appeal. (3) On an appeal under this section, the Supreme Court may make an order as it considers appropriate. Division 3 Admission to the legal profession under this Act 34 Application for admission to the legal profession (1) A person may apply to the Supreme Court to be admitted to the legal profession under this Act. (2) The application must be made in the approved form and under the admission rules. 35 Role of Supreme Court relating to application for admission (1) The Supreme Court must hear and decide each application for admission in the way the court considers appropriate. (2) Without limiting subsection (1), the court may— (a) make an order admitting the applicant to the legal profession as a lawyer if the court is satisfied the applicant for admission is— (i) eligible for admission to the legal profession under this Act; and (ii) a fit and proper person to be admitted to the legal profession under this Act; or (b) refuse the application if the court is not satisfied as mentioned in paragraph (a). (3) The court's order as mentioned in subsection (2)(a) may be made unconditionally or on conditions the court considers appropriate. (4) In deciding the application, the court may rely on a recommendation of the board under section 39. 36 Conditions (1) This section applies to a person admitted to the legal profession if— (a) the person's admission under this Act or a previous Act was subject to a condition, whether or not the condition has been amended since it was imposed; and (b) the condition as imposed or amended has not lapsed or been revoked. (2) The Supreme Court may do any of the following in relation to the condition— (a) revoke or vary the condition on which the person was admitted to the legal profession, whether on application of the person or on the court's own initiative; (b) order the removal of the person's name from the local roll for contravening the condition. (3) Without limiting subsection (2)(b), a contravention of a condition is capable of constituting unsatisfactory professional conduct or professional misconduct. 37 Roll of persons admitted to the legal profession as a lawyer (1) The Supreme Court must keep a roll of persons admitted to the legal profession, as a lawyer, under this Act. (2) The local roll must include— (a) the roll of solicitors and roll of barristers, as kept by the Supreme Court and as in existence immediately before 1 July 2004; and (b) the roll of legal practitioners, as kept by the Supreme Court from 1 July 2004 to immediately before the commencement of this section. (3) After the Supreme Court makes an order admitting a person to the legal profession under this Act— (a) the registrar for the Supreme Court district at which the Supreme Court is sitting must, under the admission rules, enter the person's name on the local roll; and (b) the person must sign the local roll. (4) The person's admission to the legal profession under this Act takes effect when the person signs the local roll. (5) Subject to the admission rules, the Brisbane registrar may give written directions to any other registrar about keeping the local roll. 38 Local lawyer is officer of Supreme Court (1) A person becomes an officer of the Supreme Court on being admitted to the legal profession under this Act. (2) A person who immediately before the commencement of this section was an officer of the Supreme Court, because of the person's admission as a barrister, solicitor or legal practitioner continues to be an officer of the court. (3) A person ceases to be an officer of the Supreme Court under this section if the person's name is removed from the local roll. Division 4 Powers and functions of board 39 Role of the board relating to application for admission (1) The board's role is to help the Supreme Court by making a recommendation about each application for admission. (2) The board must consider each application and, in particular, whether or not— (a) the application is made under the admission rules; and (b) the applicant is eligible for admission to the legal profession under this Act; and (c) the applicant is a fit and proper person for admission to the legal profession under this Act, including having regard to all suitability matters in relation to the applicant to the extent appropriate; and (d) there are other matters the Supreme Court may consider relevant. (3) The board makes a recommendation to the Supreme Court about the application by giving the recommendation to the Brisbane registrar and a copy of it to the applicant. 40 Consideration of applicant's eligibility and suitability (1) To help the board to consider an application for admission, the board may, by notice to the applicant for admission, require the applicant— (a) to give the board stated documents or information; or (b) to cooperate with any inquiries by the board that it considers appropriate. (2) An applicant's failure to comply with a notice under subsection (1) by the date stated in, and in the way required by, the notice is a ground for recommending to the Supreme Court that the applicant not be admitted to the legal profession under this Act. (3) However, if the board considers it appropriate to apply to the Supreme Court for a direction about a matter concerning an application, the board may do so. Division 5 Miscellaneous 41 Board may appear before Supreme Court The board, by a member of the board or by an Australian legal practitioner acting for the board, is entitled to appear before and be heard by the Supreme Court at a hearing about any application made under this part or a reference of an application for a direction of the court. 42 Fees payable The board must charge the fee prescribed under a regulation for matters under this part or for matters dealt with in the admission rules. Part 2.4 Legal practice by Australian legal practitioners Division 1 Preliminary 43 Main purposes of pt 2.4 The main purposes of this part are as follows— (a) to facilitate the national practice of law by ensuring that Australian legal practitioners can engage in legal practice in this jurisdiction and to provide for the certification of Australian lawyers whether or not admitted to the legal profession in this jurisdiction; (b) to provide a system for the granting and renewing of local practising certificates. Division 2 Legal practice in this jurisdiction by Australian legal practitioners 44 Entitlement to practise in this jurisdiction (1) An Australian legal practitioner is, subject to this Act, entitled to engage in legal practice in this jurisdiction. (2) Also, a government legal officer engaged in government work is, subject to this Act, entitled to engage in legal practice in this jurisdiction as a government legal officer even though the government legal officer is not an Australian legal practitioner. (3) Subsection (2) does not prevent a government legal officer from being the holder of a local practising certificate. Division 3 Local practising certificates generally 45 Local practising certificates generally (1) Practising certificates may be granted under this part. (2) A regulatory authority may decide the categories of local practising certificates to be granted by it. (3) It is a statutory condition of a local practising certificate that the holder must not hold another local practising certificate, or an interstate practising certificate, that is in force during the currency of the first-mentioned certificate. 46 Suitability to hold local practising certificate (1) This section has effect for the purposes of section 51 and any other provision of this Act where the question of whether or not a person is a fit and proper person to hold, or to continue to hold, a local practising certificate is relevant. (2) A regulatory authority of this jurisdiction, in considering whether a person is, or is no longer, a fit and proper person to hold a local practising certificate, may take into account any suitability matter relating to the person, and any of the following, whether happening before or after the commencement of this section— (a) whether the person obtained an Australian practising certificate because of incorrect or misleading information; (b) whether the person has contravened a condition of an Australian practising certificate held by the person; (c) whether the person has contravened a relevant law or a corresponding law; (d) whether the person has contravened— (i) an order of a disciplinary body or the Supreme Court; or (ii) an order of a corresponding disciplinary body, or of a court or tribunal of another jurisdiction exercising jurisdiction or powers by way of appeal or review of an order of a corresponding disciplinary body; (e) without limiting any other paragraph, whether the person has failed to pay an amount for which the person is or was liable under a relevant law or a corresponding law, including, for example, an amount payable to the fidelity fund or other costs or expenses for which the person is liable under a relevant law; (f) whether, without limiting paragraph (e), the person has contravened a provision of a relevant law or a corresponding law about professional indemnity insurance; (g) whether the person is or was a legal practitioner director of an incorporated legal practice while the practice is or was insolvent; (h) whether the person is or was a director of a corporation while the corporation is or was insolvent; (i) other matters the authority thinks are appropriate. (3) A person may be considered a fit and proper person to hold, or to continue to hold, a local practising certificate even though the person is within any of the categories of the matters mentioned in subsection (2), if the relevant authority considers that the circumstances warrant the decision. (4) If a matter was— (a) disclosed in an application for admission to the legal profession in this or another jurisdiction; and (b) decided by the Supreme Court or the board, or a Supreme Court of another jurisdiction or corresponding authority of another jurisdiction corresponding to the board, not to be sufficient for refusing admission to the legal profession; the matter can not be taken into account as a ground for refusing to grant or renew, or for suspending or cancelling, a local practising certificate, but the matter may be taken into account when considering other matters in relation to the person concerned. 47 Duration of local practising certificates (1) A local practising certificate granted under this Act is in force from the date stated in it until the end of the financial year in which it is granted, unless the certificate is sooner suspended or cancelled. (2) A local practising certificate renewed under this Act is in force until the end of the financial year following its previous period of currency, unless the certificate is sooner suspended or cancelled. (3) If an application for the renewal of a local practising certificate is received before the time stated in the regulatory authority's administration rules for applying for a renewal but the application has not been decided by the following 1 July, the certificate— (a) continues in force on and from that 1 July until 1 of the following happens— (i) the authority renews or refuses to renew the certificate; (ii) the local legal practitioner withdraws the application for renewal; (iii) the certificate is suspended or cancelled; and (b) if renewed, is taken to have been renewed on and from that 1 July. 48 Local legal practitioner is officer of Supreme Court A person who is not already an officer of the Supreme Court becomes an officer of the Supreme Court on being granted a local practising certificate. Division 4 Grant or renewal of local practising certificates 49 Application for grant or renewal of local practising certificate (1) An Australian lawyer may apply to a regulatory authority for the grant or renewal of a local practising certificate if eligible to do so under this section. (2) An Australian lawyer is eligible to apply for the grant or renewal of a local practising certificate if the lawyer complies with all provisions of a regulation and the legal profession rules relating to eligibility for the practising certificate and— (a) in the case of a lawyer who is not an Australian legal practitioner at the time of making the application— (i) the lawyer reasonably expects to be engaged in legal practice solely or principally in this jurisdiction during the currency of the certificate or renewal applied for; or (ii) if subparagraph (i) does not apply to the lawyer or it is not reasonably practical to decide whether it applies to the lawyer—the lawyer's place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia; or (b) in the case of a lawyer who is an Australian legal practitioner at the time of making the application— (i) the jurisdiction in which the lawyer engages in legal practice solely or principally is this jurisdiction; or (ii) the lawyer holds a current local practising certificate and engages in legal practice in another jurisdiction under an arrangement of a temporary nature; or (iii) the lawyer reasonably expects to be engaged in legal practice solely or principally in this jurisdiction during the currency of the certificate or renewal applied for; or (iv) if subparagraphs (i), (ii) and (iii) do not apply to the lawyer or it is not reasonably practical to decide whether subparagraph (i), (ii) or (iii) applies to the lawyer—the lawyer's place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia. (3) For subsection (2)(b), the jurisdiction in which an Australian lawyer engages in legal practice solely or principally is to be decided by reference to the lawyer's legal practice during the certificate period current at the time— (a) the application is made; or (b) in the case of a late application—the application should have been made. (4) An Australian lawyer is not eligible to apply for the grant or renewal of a local practising certificate in relation to a financial year if the lawyer would also be the holder of another Australian practising certificate for that year, but this subsection does not limit the factors deciding ineligibility to apply for the grant or renewal of a local practising certificate. (5) An Australian lawyer must not apply for the grant or renewal of a local practising certificate if the lawyer is not eligible to make the application. (6) An Australian legal practitioner who— (a) engages in legal practice solely or principally in this jurisdiction during a financial year; and (b) reasonably expects to engage in legal practice solely or principally in this jurisdiction in the following financial year; must apply for the grant or renewal of a local practising certificate in relation to the following financial year. (7) Subsection (6) does not apply to an interstate legal practitioner who applied for the grant or renewal of an interstate practising certificate on the basis that the practitioner reasonably expected to engage in legal practice solely or principally in this jurisdiction under an arrangement that is of a temporary nature. (8) However, subsection (7) ceases to operate in relation to an interstate legal practitioner at the end of the period prescribed by a regulation for the subsection. (9) A reference in this section to engaging in legal practice principally in this or any other jurisdiction applies only to legal practice in Australia and, accordingly, an Australian lawyer who is engaged or expects to be engaged in legal practice principally in a foreign country is nevertheless eligible to apply for the grant or renewal of a local practising certificate if the lawyer otherwise meets the requirements of this section. Note— The purpose of subsection (9) is to deal with a case where a person practises both in Australia and overseas. In that case, overseas practice is to be disregarded (even if it forms the principal portion of the person's overall practice), so that eligibility is decided by reference to the person's practice in Australia. 50 Manner of application (1) An application for the grant or renewal of a local practising certificate must be— (a) made in the approved form of the relevant regulatory authority; and (b) made in the way provided for under the administration rules of the relevant regulatory authority; and (c) for an application for renewal—made within the period stated in the administration rules of the relevant regulatory authority. (2) The approved form may require the applicant to disclose matters that may affect the applicant's eligibility for the grant or renewal of a local practising certificate or the question whether the applicant is a fit and proper person to hold a local practising certificate. (3) The approved form may indicate that particular kinds of matters previously disclosed in a particular way need not be disclosed for the purposes of the current application. 51 Grant or renewal of local practising certificate (1) A regulatory authority must consider an application that has been made to it for the grant or renewal of a local practising certificate and may— (a) grant or refuse to grant the certificate; or (b) renew or refuse to renew the certificate. (2) The regulatory authority may, when granting or renewing a certificate, impose conditions as mentioned in section 53. (3) The regulatory authority may refuse— (a) to consider an application if— (i) it is not made under this Act; or (ii) fees and costs payable under this Act have not been paid; or (b) to grant or renew a local practising certificate if the applicant has not complied with the administration rules of the authority relating to the application. (4) The regulatory authority must not grant a local practising certificate unless it is satisfied that the applicant— (a) was eligible to apply for the grant when the application was made; and (b) is a fit and proper person to hold the certificate. (5) The regulatory authority must not renew a local practising certificate if it is satisfied that the applicant— (a) was not eligible to apply for the renewal of the certificate when the application was made; or (b) is not a fit and proper person to continue to hold the certificate. Note— See section 46 (Suitability to hold local practising certificate). (6) Also, the regulatory authority must not grant or renew a local practising certificate if the authority considers the applicant's circumstances have changed since the application was made and the applicant would, having regard to information that has come to the authority's attention, not have been eligible to make the application when the application is being considered. (7) If the regulatory authority grants or renews a local practising certificate, the authority must give the applicant— (a) for the grant of a certificate—a local practising certificate; or (b) for the renewal of a certificate—a new local practising certificate or a notice of renewal. (8) The regulatory authority must give the applicant an information notice if the authority— (a) refuses to grant or renew a local practising certificate; or (b) imposes a condition on the certificate and the applicant does not agree to the condition. (9) The applicant may apply, as provided under the QCAT Act, to the tribunal for a review of the decision to refuse to grant or renew the local practising certificate as mentioned in subsection (8). Note— For matters relevant to the imposition of conditions, see section 54. Division 5 Conditions on local practising certificates 52 Conditions generally A local practising certificate is subject to the following— (a) a condition imposed by the relevant regulatory authority at the time the certificate is granted unless the condition is revoked at a later time; (b) a statutory condition as mentioned in section 45, 55, 56 or 57; (c) a condition imposed or amended under division 6 or 7; (d) a condition imposed or amended under chapter 4 or under a corresponding law; (e) a condition imposed or amended under a regulation, the legal profession rules or the administration rules. 53 Conditions imposed by law society or bar association (1) At the time a regulatory authority grants a local practising certificate, the authority may impose any reasonable and relevant condition on the practising certificate. (2) A condition may be about any of the following— (a) requiring the certificate holder to undertake or complete— (i) continuing legal education; or (ii) stated legal education or training; (b) limiting the certificate holder to supervised legal practice in the way stated in the condition or to the practice of areas of law stated in the condition;