LEGAL PRACTITIONERS (MISCELLANEOUS) AMENDMENT BILL

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. Clause 32, page 25, line 18 [clause 32(2), inserted paragraph (g)]—

After 'the Commissioner' insert '(if he or she is a legal practitioner)'

No. 2. Clause 32, page 25, after line 19 [clause 32(2)]—After inserted paragraph (g) insert:

and

(h) the Independent Commissioner Against Corruption and a legal practitioner engaged by the Independent Commissioner Against Corruption.

No. 3. New clause, page 31, after line 34—After clause 38 insert:

38A—Amendment of section 61—Limitation of claims

Section 61(1)—delete 'three' and substitute '6'

No. 4. New clause, page 31, before line 35—Before clause 39 insert:

38B—Amendment of section 64—Satisfaction of claims

Section 64(2)—delete 'the prescribed percentage' and substitute:

a percentage (which must not be less than 20%) prescribed by regulation for the purposes of this subsection

No. 5. New clause, page 32, after line 26—After clause 40 insert:

40A—Amendment of section 67A—Annual report

Section 67A(2)—delete subsection (2) and substitute:

(2) The report must—

(a) state the amount of the payments from the Fidelity Fund during the financial year and the nature of the claims in respect of which payments were made; and

(b) contain the audited statement of accounts of the Fidelity Fund for the period to which the report relates.

No. 6. Clause 41, page 34, line 8 [clause 41, inserted section 71(2)]—

After 'the Governor' insert:

, following consultation about the appointment by the Attorney-General with the Society and the South Australian Bar Association Incorporated,

No. 7. Clause 41, page 34, lines 10 to 17 [clause 41, inserted section 71(3)]—

Delete subsection (3) and substitute:

(3) Although a person appointed as Legal Profession Conduct Commissioner need not be a legal practitioner, the Commissioner must be a person who, in the opinion of the Attorney-General—

(a) is familiar with the nature of the legal system and legal practice; and

(b) possesses sufficient qualities of independence, fairness and integrity.

No. 8. Clause 41, page 35, after line 5 [clause 41, inserted section 72]—

After inserted subsection (3) insert:

(4) The Commissioner may be represented in proceedings before any court or tribunal by a legal practitioner employed or engaged by the Commissioner.

No. 9. Clause 41, page 36, lines 12 and 13 [clause 41, inserted section 77(1)]—

Delete '(except the matters referred to in subsection (2) or any other prescribed function or power)'

No. 10. Clause 41, page 36, lines 14 to 21 [clause 41, inserted section 77(2)]—Delete inserted subsection (2)

No. 11. New clause, page 50, after line 12—After clause 41 insert:

41A—Amendment of section 78—Establishment of Tribunal

(1) Section 78(2)—after 'Chief Justice' insert:

of whom—

(a) 10 must be legal practitioners; and

(b) 5 must be persons who are not legal practitioners but who are familiar with the nature of the legal system and legal practice.

(2) Section 78(3)—after 'Tribunal' insert 'under subsection (2)(a)'

(3) Section 78(4)—after 'member of the Tribunal' insert:

who is a legal practitioner

(4) Section 78(4)—after 'another member' insert:

who is a legal practitioner

No. 12. Clause 42, page 51, after line 5 [clause 42(2)]—

After inserted subsection (1b) insert:

(1c) The Tribunal when constituted of a panel of 3 of its members must include at least 1 member who is a legal practitioner and at least 1 member who is not a legal practitioner but when the Tribunal consists of only 1 of its members the member constituting the Tribunal must be a legal practitioner.

No. 13. New clause, page 60, after line 8—After clause 53 insert:

53A—Repeal of section 95C

Section 95C—delete the section

No. 14. New clause, page 61, after line 15—After clause 55 insert:

55A—Insertion of section 98

After section 97 insert:

98—Review of operation of Act in relation to barristers

(1) The Minister must, within 6 months after the commencement of this section, cause a review to be undertaken into—

(a) the operation of this Act insofar as it affects legal practitioners who practise the profession of the law solely as barristers; and

(b) the operation of section 6, with particular reference to the role of a separate bar.

(2) A report on the review must be submitted to the Minister within 3 months after the commencement of the review.

(3) The Minister must, within 12 sitting days after receiving the report under this section, cause copies of the report to be laid before both Houses of Parliament.

No. 15. Clause 56, page 77, after line 18 [clause 56, inserted Schedule 2, clause 1(1)]—

After the definition of approved ADI insert:

barrister means a legal practitioner who practises the profession of the law solely as a barrister;

No. 16. Clause 56, page 82, line 34 [clause 56, inserted Schedule 2, clause 10]—Delete 'legal practitioner' and substitute 'barrister'

No. 17. Clause 56, page 99, after line 5 [clause 56, inserted Schedule 3, clause 1]—

After the definition of adjudication insert:

barrister means a legal practitioner who practises the profession of the law solely as a barrister;

No. 18. Clause 56, page 103, line 18 [clause 56, inserted Schedule 3, clause 9]—Delete 'person engaged only as a barrister' and substitute 'barrister engaged'

No. 19. Clause 56, page 103, after line 30 [clause 56, inserted Schedule 3, clause 10(1)]—

After paragraph (b) insert:

(ba) whether or not the law practice is prepared to enter into an arrangement with the client under which the law practice will not receive trust money for the purposes of the client's matter; and

No. 20. Clause 56, page 129, lines 16 and 17 [clause 56, inserted Schedule 4 clause 5(2)(a)]—Delete paragraph (a)

No. 21. Clause 56, page 129, lines 20 to 37 [clause 56, inserted Schedule 4 clause 5(3)]—Delete subclause (3)

No. 22. Clause 56, page 130, line 6 [clause 56, inserted Schedule 4 clause 5(6)]—

After 'the requirement' insert:

(other than on the ground that the giving of the information or access to information may tend to incriminate the practitioner)

No. 23. Clause 56, page 130, lines 11 and 12 [clause 56, inserted Schedule 4 clause 5(7)]—Delete 'to comply with the requirement' and substitute 'of a kind referred to in subclause (6)'

No. 24. Schedule 1, page 139 [Schedule 1, table, entry relating to section 67A(2)]—Delete both lines of the entry relating to section 67A(2)

No. 25. Schedule 2, clause 11, page 141, after line 14—Insert:

(2) Section 64 of the principal Act applies to any claim in relation to a fiduciary or professional default, or a series of fiduciary or professional defaults, in respect of which the Society has published a notice under Part 5 of the principal Act before the commencement of section 38B as if—

(a) the amendment to section 64(2) made by that section had not been made; and

(b) the prescribed percentage for the purposes of section 64(2) were 5%.

No. 26. Schedule 2, page 143, after line 27 [Schedule 2 Part 4]—After clause 17 insert:

18—Tribunal members

(1) The office of all members of the Legal Practitioners Disciplinary Tribunal will become vacant on the commencement of section 41A of this Act.

(2) A person who ceases to hold office as a member of the Tribunal under subclause (1)—

(a) may be appointed to the vacant office; or

(b) may continue to act as a member of the Tribunal for the purpose of completing the hearing and determination of proceedings part-heard on the commencement of section 41A.