Chapter 4 Complaints and discipline
Part 4.1 Preliminary
416 Main purposes of ch 4
The main purposes of this chapter are as follows—
(a) to provide for the discipline of the legal profession;
(b) to promote and enforce the professional standards,
competence and honesty of the legal profession;
[s 417]
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(c) to provide a means of redress for complaints about
lawyers;
(d) to otherwise protect members of the public from
unlawful operators.
417 Application of chapter to lawyers, former lawyers and
former practitioners
(1) This chapter applies to Australian lawyers and former
Australian lawyers in relation to conduct happening while
they were Australian lawyers (but not Australian legal
practitioners) in the same way as it applies to Australian legal
practitioners and former Australian legal practitioners, and so
applies with any necessary changes.
(2) This chapter applies to former Australian legal practitioners in
relation to conduct happening while they were Australian
legal practitioners in the same way as it applies to persons
who are Australian legal practitioners, and so applies with any
necessary changes.
(3) In this section—
former Australian legal practitioner includes a person who
was a solicitor or barrister in this jurisdiction before 1 July
2004.
Part 4.2 Key concepts
418 Meaning of unsatisfactory professional conduct
Unsatisfactory professional conduct includes conduct of an
Australian legal practitioner happening in connection with the
practice of law that falls short of the standard of competence
and diligence that a member of the public is entitled to expect
of a reasonably competent Australian legal practitioner.
[s 419]
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419 Meaning of professional misconduct
(1) Professional misconduct includes—
(a) unsatisfactory professional conduct of an Australian
legal practitioner, if the conduct involves a substantial or
consistent failure to reach or keep a reasonable standard
of competence and diligence; and
(b) conduct of an Australian legal practitioner, whether
happening in connection with the practice of law or
happening otherwise than in connection with the
practice of law that would, if established, justify a
finding that the practitioner is not a fit and proper person
to engage in legal practice.
(2) For finding that an Australian legal practitioner is not a fit and
proper person to engage in legal practice as mentioned in
subsection (1), regard may be had to the suitability matters
that would be considered if the practitioner were an applicant
for admission to the legal profession under this Act or for the
grant or renewal of a local practising certificate.
420 Conduct capable of constituting unsatisfactory
professional conduct or professional misconduct
(1) The following conduct is capable of constituting
unsatisfactory professional conduct or professional
misconduct—
(a) conduct consisting of a contravention of a relevant law,
whether the conduct happened before or after the
commencement of this section;
Note—
Under the Acts Interpretation Act 1954, section 7, and the
Statutory Instruments Act 1992, section 7, a contravention in
relation to this Act would include a contravention of a regulation
or legal profession rules and a contravention in relation to a
previous Act would include a contravention of a legal profession
rule under the Legal Profession Act 2004.
[s 421]
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(b) charging of excessive legal costs in connection with the
practice of law;
(c) conduct for which there is a conviction for—
(i) a serious offence; or
(ii) a tax offence; or
(iii) an offence involving dishonesty;
(d) conduct of an Australian legal practitioner as or in
becoming an insolvent under administration;
(e) conduct of an Australian legal practitioner in becoming
disqualified from managing or being involved in the
management of any corporation under the Corporations
Act;
(f) conduct of an Australian legal practitioner in failing to
comply with an order of a disciplinary body made under
this Act or an order of a corresponding disciplinary
body made under a corresponding law, including a
failure to pay wholly or partly a fine imposed under this
Act or a corresponding law;
(g) conduct of an Australian legal practitioner in failing to
comply with a compensation order made under this Act
or a corresponding law.
(2) Also, conduct that happened before the commencement of
this subsection that, at the time it happened, consisted of a
contravention of a relevant law or a corresponding law is
capable of constituting unsatisfactory professional conduct or
professional misconduct.
(3) This section does not limit section 418 or 419.
421 Meaning of respondent
A respondent is any of the following—
(a) if a complaint is made about an Australian legal
practitioner to whom this chapter applies—the
practitioner;
[s 422]
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(b) if a complaint is made about a law practice employee in
relation to conduct to which this chapter applies—the
law practice concerned and the law practice employee;
(c) if a complaint is made about an unlawful operator—the
unlawful operator;
(d) otherwise—a person to whom this chapter applies and
about whom the commissioner, on his or her own
initiative, starts an investigation under section 435.
Part 4.3 Application of this chapter
422 Practitioners to whom this chapter applies
This chapter applies to an Australian legal practitioner for
conduct to which this chapter applies, whether or not—
(a) the practitioner is a local lawyer; or
(b) the practitioner holds a local practising certificate; or
(c) the practitioner holds an interstate practising certificate;
or
(d) the practitioner resides or has an office in this
jurisdiction; or
(e) if a complaint is made about the practitioner—the
complainant resides, works or has an office in this
jurisdiction.
423 Conduct to which this chapter applies—generally
(1) Subject to subsection (3), this chapter applies to conduct of an
Australian legal practitioner happening in this jurisdiction
whether before or after the commencement of this section.
(2) Also, this chapter applies to an Australian legal practitioner’s
conduct happening outside this jurisdiction, whether or not
[s 423]
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the conduct was engaged in before or after the
commencement of this section, but only—
(a) if the conduct is part of a course of conduct that
happened partly in this jurisdiction and partly in another
jurisdiction, and either—
(i) the corresponding authority of each other
jurisdiction in which the conduct happened
consents to it being dealt with under this Act; or
(ii) the practitioner and, if a complaint is made by a
person about the practitioner, the complainant
consent to it being dealt with under this Act; or
(b) if the conduct happened in Australia but entirely outside
this jurisdiction and the practitioner is a local lawyer or
a local legal practitioner, and either—
(i) the corresponding authority of each jurisdiction in
which the conduct happened consents to it being
dealt with under this Act; or
(ii) the practitioner and, if a complaint is made by a
person about the practitioner, the complainant
consent to it being dealt with under this Act; or
(c) if the conduct happened entirely or partly outside
Australia and the practitioner is a local lawyer or a local
legal practitioner.
(3) This chapter does not apply to conduct happening in this
jurisdiction if—
(a) the commissioner consents to the conduct being dealt
with under a corresponding law; or
(b) the Australian legal practitioner and, if a complaint is
made by a person about the practitioner, the complainant
consent to the conduct being dealt with under a
corresponding law.
(4) Subsection (3) does not apply if the conduct is not capable of
being dealt with under a corresponding law.
[s 424]
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(5) The commissioner may give consent for subsection (3)(a), and
may do so conditionally or unconditionally.
Note—
Conduct before the commencement of this provision, that contravened
the Personal Injuries Proceedings Act 2002, chapter 3, part 1, and had
not been dealt with, or finally dealt with, under that Act, may be dealt
with under this Act. See the Personal Injuries Proceedings Act 2002,
section 85 (Provision for advertising of personal injury services and
touting).
424 Conduct to which this chapter applies—insolvency,
serious offences and tax offences
(1) This chapter applies to the following conduct of a local legal
practitioner whether happening in Australia or elsewhere or
whether engaged in before or after the commencement of this
section—
(a) conduct of the practitioner in relation to which there is a
conviction for—
(i) a serious offence; or
(ii) a tax offence; or
(iii) an offence involving dishonesty;
(b) conduct of the practitioner as or in becoming an
insolvent under administration;
(c) conduct of the practitioner in becoming disqualified
from managing or being involved in the management of
any corporation under the Corporations Act.
(2) This section has effect despite anything in section 423.
425 Chapter also applies to law practice employees
(1) This chapter applies to the conduct of a law practice employee
in relation to the relevant practice whether or not—
[s 426]
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(a) the conduct is part of a course of conduct that happened
partly in this jurisdiction and partly in another
jurisdiction; or
(b) the conduct was engaged in before or after the
commencement of this section.
(2) Also, this chapter applies to former law practice employees in
relation to conduct happening while they were law practice
employees in the same way as it applies to persons who are
law practice employees, and so applies with necessary
changes.
(3) In this section—
former law practice employee includes a person who was a
law practice employee in this jurisdiction before the
commencement of this section but is not a law practice
employee on the commencement.
426 Chapter also extends to other persons in particular
circumstances
This chapter applies to the conduct of all persons, including
Australian legal practitioners and law practice employees,
suspected of contravening the Personal Injuries Proceedings
Act 2002, chapter 3, part 1.
427 Chapter also applies to unlawful operators
This chapter applies to the conduct of an unlawful operator,
constituting a contravention of section 24 or 25, whether or
not the conduct was engaged in before or after the
commencement of this section.
[s 428]
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Part 4.4 Complaints about Australian legal practitioners
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Part 4.4 Complaints about Australian
legal practitioners
428 Conduct about which complaint may be made
(1) A complaint may be made under this chapter about—
(a) an Australian legal practitioner’s conduct to which this
chapter applies; or
(b) the conduct of a law practice employee to which this
chapter applies; or
(c) the conduct of an unlawful operator in relation to
conduct that constitutes a contravention of section 24 or
25.
(2) A complaint may be made under this chapter about conduct
happening outside this jurisdiction, but the complaint must not
be dealt with under this chapter unless this chapter is or
becomes applicable to the conduct.
429 Making a complaint
(1) Subject to subsection (4), an entity may make a complaint in
the approved form to the commissioner about the conduct of
an Australian legal practitioner, law practice employee or
unlawful operator, including, for example, an entity that—
(a) is or was a client of the law practice; or
(b) is the relevant regulatory authority.
(2) However for a government legal officer, only the following
entities may make a complaint about the conduct of the officer
in relation to the government work engaged in by the
officer—
(a) an Australian legal practitioner;
(b) a relevant regulatory authority;
[s 430]
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(c) the chief executive officer, however expressed, of the
department or agency in which the officer is a
government legal officer or, if the chief executive officer
may delegate that power, a delegate.
(3) The complaint must—
(a) identify the complainant; and
(b) if possible, identify the person about whom the
complaint is made; and
(c) describe the alleged conduct the subject of the
complaint.
(4) The approved form for a complaint may only be approved by
the commissioner.
(5) The commissioner may accept a complaint made in writing
other than in the approved form.
430 Complaints made over 3 years after conduct concerned
(1) This section applies if a complaint is received by the
commissioner more than 3 years after the conduct happened
that is the subject of the complaint, including conduct that
happened before the commencement of this section.
(2) The commissioner may—
(a) refer the complaint to mediation; or
(b) dismiss the complaint unless the commissioner decides
that—
(i) it is just and fair to deal with the complaint having
regard to the extent of, and reasons for, the delay;
or
(ii) the complaint involves conduct of the following
type and it is in the public interest to deal with the
complaint—
[s 431]
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(A) conduct of an Australian legal practitioner
that the commissioner considers may be
professional misconduct;
(B) conduct of a law practice employee that the
commissioner considers may be misconduct
of the employee in relation to the relevant
practice.
(3) If the commissioner dismisses the complaint, the
commissioner must give an information notice to the
complainant about the decision.
(4) For working out whether it is more than 3 years since conduct
that is the subject of the complaint happened, the
commissioner must calculate from the last day that the
conduct happened.
(5) This section does not limit the commissioner’s power to
dismiss a complaint under section 424.
(6) In this section—
complaint does not include a complaint about the conduct of
an unlawful operator.
431 Further information and verification
(1) The commissioner may, by written notice to a complainant,
require the complainant to do 1 or more of the following—
(a) give further information about the complaint;
(b) verify the complaint, or any further information, by
statutory declaration;
(c) sign an approved form that acknowledges the waiver of
legal professional privilege, or the benefit of a duty of
confidentiality, as mentioned in section 492.
(2) The notice must state a date, that is reasonable, by which the
complainant must comply with the notice.
[s 432]
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(3) The commissioner may extend the time for the complainant to
comply with subsection (1) on application by the complainant
whether before or after the date stated in the notice.
432 Summary dismissal of complaints
(1) The commissioner may dismiss a complaint for 1 or more of
the following reasons—
(a) the commissioner has given the complainant a notice
under section 431 and, within the time stated in the
notice or under an extension under that section, the
complainant has not complied with the notice;
(b) the complaint does not disclose conduct that the
commissioner considers may be—
(i) conduct to which this chapter applies; or
(ii) unsatisfactory professional conduct or professional
misconduct of an Australian legal practitioner or
misconduct of a law practice employee in relation
to the relevant practice;
(c) the commissioner considers the complaint is vexatious,
misconceived, frivolous or lacking in substance;
(d) the conduct complained about has been the subject of a
previous complaint that has been dismissed or dealt
with, and the commissioner considers that the complaint
discloses no reason to reconsider the matter;
(e) it is not in the public interest to deal with the complaint
having regard to the fact that the name of the Australian
legal practitioner to whom the complaint relates has
already been removed from any Australian roll in which
he or she was enrolled.
(2) The commissioner may dismiss a complaint under this section
without completing an investigation if, having considered the
complaint, the commissioner forms the view that the
complaint requires no further investigation.
[s 433]
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(3) If a complaint is dismissed for the reason mentioned in
subsection (1)(a), the dismissal does not prevent the
complainant from making a fresh complaint under section
429.
(4) In this section—
complaint does not include a complaint about the conduct of
an unlawful operator.
previous complaint includes—
(a) a complaint under the Queensland Law Society Act 1952
or the Legal Profession Act 2004, if the complaint was
made under that Act before the commencement of this
section; and
(b) a complaint made to the bar association if the complaint
was made before 1 July 2004.
433 Withdrawal of complaints
(1) The complainant may withdraw the complaint by notice to the
commissioner.
(2) If the notice about the withdrawal is oral, the commissioner
must do each of the following unless the complainant gives
the commissioner written confirmation of the withdrawal—
(a) make a written record of the withdrawal;
(b) give the complainant a copy of the record, or send a
copy of it addressed to the complainant at the
complainant’s address last known to the commissioner.
(3) However, the withdrawal of the complaint does not prevent
action being taken on a complaint by another person, or by the
commissioner on the commissioner’s own initiative.
(4) In this section—
complaint does not include a complaint about the conduct of
an unlawful operator.
[s 434]
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withdrawal, of a complaint, includes withdrawal of some only
or part only of the matters that form the subject of the
complaint.
434 Commissioner may delay dealing with complaint
(1) The commissioner may delay dealing with a complaint for 1
or more of the following reasons—
(a) the complainant has asked for a delay and the
commissioner considers the request reasonable;
(b) for a complaint about an Australian legal
practitioner—the practitioner is under investigation in
this jurisdiction or another jurisdiction and, under this
Act or a corresponding law of that other jurisdiction, the
practitioner’s name may be removed from the local roll
or interstate roll;
(c) the matter that is the subject of the complaint is being or
about to be dealt with in another way;
(d) the commissioner considers that it is in the public
interest to delay dealing with the complaint.
(2) Subsection (1) applies despite sections 18 and 450.
435 Referral by commissioner to law society or bar
association
(1) This section applies if—
(a) a complaint is received by the commissioner and is not
dismissed under section 430(2)(b) or 432 or withdrawn
under section 433; or
(b) a complaint is withdrawn under section 433 but the
commissioner has continued to investigate the matter on
the commissioner’s own initiative; or
(c) the commissioner believes that an investigation about a
matter (an investigation matter) should be started into
the conduct of—
[s 436]
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(i) an Australian legal practitioner, law practice
employee or unlawful operator; or
(ii) any person, including an Australian legal
practitioner, a law practice employee in relation to
a relevant practice or an unlawful operator,
suspected of contravening the Personal Injuries
Proceedings Act 2002, chapter 3, part 1.
(2) The commissioner may refer the complaint or the
investigation matter to the relevant regulatory authority.
(3) The referral may state a date by which the regulatory authority
is to report to the commissioner about the complaint or
investigation matter and directions to the authority about the
way in which the authority is to conduct the investigation.
(4) The commissioner may extend the date for the report but may
require the authority to give the commissioner an interim
report.
(5) At any time while the regulatory authority is carrying out its
investigation, including after the commissioner is given an
interim report, the commissioner may give directions or
further directions about the way in which the authority is to
conduct the investigation.
436 Commissioner investigating a complaint or investigation
matter
(1) The commissioner must investigate a complaint or an
investigation matter if the commissioner is satisfied—
(a) it is inconsistent with the public interest for the relevant
regulatory authority to investigate the complaint or
investigation matter; or
(b) it is in the public interest for the commissioner to
investigate the complaint or investigation matter.
(2) Also, the commissioner must investigate a complaint or
investigation matter that is not mentioned in subsection (1) but
is not referred to a regulatory authority under section 435(2).
[s 437]
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(3) If the commissioner considers it appropriate to start or
continue an investigation into a complaint or investigation
matter that was referred to a regulatory authority under
section 435(2), the commissioner may do so by giving a
written notice of the commissioner’s decision to the authority.
(4) A regulatory authority given a notice under subsection (3)
must give to the commissioner all documents relating to the
investigation into the complaint or investigation matter.
437 Australian lawyer to be notified of complaint or
investigation matter
(1) The entity carrying out an investigation as mentioned in
section 435 or 436 must ensure that written notice of the
following is given to the respondent—
(a) the making of the complaint or the investigation into an
investigation matter;
(b) the nature of the complaint or investigation matter;
(c) for a complaint, the identity of the complainant;
(d) action taken by the entity in relation to the complaint or
investigation matter before giving the notice.
(2) Also, the notice must advise the respondent that he or she may
make submissions to the entity by a stated date that is
reasonable.
(3) However, subsection (1) does not apply if the entity believes
giving the notice will or is likely to—
(a) prejudice the investigation of the complaint or
investigation matter; or
(b) prejudice an investigation by the police, or another
investigatory or law enforcement body, of a matter with
which the complaint or investigation matter is
concerned; or
(c) place the complainant or another person at risk of
intimidation or harassment; or
[s 438]
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(d) prejudice pending court proceedings.
(4) If the entity has a belief mentioned in subsection (3), the
entity—
(a) may postpone giving the respondent the written notice
mentioned in subsection (1) until the entity believes it is
appropriate to do so; or
(b) may give the respondent a written notice that states—
(i) the general nature of the complaint or investigation
matter; and
(ii) if the entity believes the respondent has sufficient
information to make submissions about the
complaint or investigation matter—the
respondent’s right to make submissions within a
stated period.
(5) Nothing in this section requires the entity to give written
notice to the respondent until the entity has had time to do the
following to its satisfaction—
(a) consider the complaint or investigation matter;
(b) seek further information about the complaint from the
complainant or otherwise seek further information about
the investigation matter;
(c) otherwise undertake preliminary inquiries into the
complaint or investigation matter;
(d) properly prepare the notice.
438 Submissions by respondent
(1) A respondent given a notice under section 453 may, by the
date stated in that notice, make written submissions to the
commissioner or the stated relevant regulatory authority about
the complaint or investigation matter.
(2) At the request of the respondent or the regulatory authority,
the commissioner may substitute a later date by which
submissions may be made.
[s 439]
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(3) The commissioner or regulatory authority must consider the
submissions made before the stated date or any later date
before deciding whether to make a discipline application
relating to the complaint or investigation matter.
439 Role of law society or bar association
(1) If a complaint or investigation matter is referred to a
regulatory authority, it must investigate the complaint or
investigation matter and report to the commissioner about the
complaint or matter by the stated date or a later date stated in
an extension by the commissioner.
(2) For subsection (1), the regulatory authority may investigate a
complaint or investigation matter by an investigator
investigating the complaint or matter and presenting evidence
to the authority for its consideration and report.
(3) The report to the commissioner by the regulatory authority
must—
(a) be in an approved form approved by the commissioner;
and
(b) include a recommendation about whether a proceeding
before a disciplinary body in relation to the complaint or
investigation matter should be started.
(4) Without limiting the matters to which the regulatory authority
may have regard when making a recommendation as
mentioned in subsection (3)(b), the authority may have regard
to the following—
(a) the public interest in the complaint or investigation
matter being heard and decided by a disciplinary body;
(b) the likelihood of a finding of—
(i) unsatisfactory professional conduct or professional
misconduct against an Australian legal
practitioner; or
(ii) misconduct of a law practice employee in relation
to a relevant practice;
[s 440]
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(c) any other action or proceeding that may have started or
finished in relation to the conduct the subject of the
complaint or investigation matter or to the same
practitioner or law practice employee.
(5) If the regulatory authority recommends making a discipline
application, the report must also include a draft of the
application and the evidence to support the application.
Part 4.5 Mediation for complaints
involving consumer dispute
440 Definition for pt 4.5
In this part—
consumer dispute means a dispute between a person and a
law practice about conduct of—
(a) an Australian legal practitioner to the extent the
commissioner considers that the dispute does not
involve an issue of unsatisfactory professional conduct
or professional misconduct; or
(b) a law practice employee of a relevant practice to the
extent the commissioner considers that the dispute does
not involve an issue of misconduct in relation to the
relevant practice.
441 Mediation of complaint involving consumer dispute
solely
(1) This section applies to a complaint that involves a consumer
dispute.
(2) The commissioner may—
(a) suggest to the complainant and the respondent that they
enter into a process of mediation; and
[s 442]
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Part 4.6 Investigations
Current as at 1 November 2013 Page 339
(b) refer the matter to the relevant regulatory authority to
see if the authority may help in the mediation or
otherwise in the resolution of the complaint.
(3) The commissioner is then not required to take further action
on the complaint.
442 Mediation of hybrid complaint
(1) This section applies to a complaint that involves both of the
following—
(a) a consumer dispute;
(b) an issue of unsatisfactory professional conduct or
professional misconduct by an Australian legal
practitioner or of misconduct by a law practice
employee in relation to the relevant practice.
(2) The commissioner may—
(a) suggest to the complainant and the respondent that they
enter into a process of mediation; and
(b) refer the matter to the relevant regulatory authority to
see if the authority may help in the mediation or
otherwise in the resolution of the complaint.
(3) The complaint must continue to be dealt with under this
chapter after or during the mediation or attempt at mediation.
Part 4.6 Investigations
443 Powers for investigations
(1) The entity carrying out an investigation as mentioned in
section 435 or 436 may, for the investigation—
(a) require an Australian legal practitioner who is the
subject of the investigation—
[s 443]
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(i) to give the entity, in writing or personally, within a
stated reasonable time a full explanation of the
matter being investigated; or
(ii) to appear before the entity at a stated reasonable
time and place; or
(iii) to produce to the entity within a stated reasonable
time any document in the practitioner’s custody,
possession or control that the practitioner is
entitled at law to produce; or
(b) engage a person, whom the entity considers is qualified
because the person has the necessary expertise or
experience, to report on the reasonableness of an
Australian legal practitioner’s bill of costs.
(2) Subject to subsection (6), the Australian legal practitioner
must comply with a requirement under subsection (1)(a).
Maximum penalty—50 penalty units.
(3) If the practitioner fails to comply with the requirement, the
entity may give the practitioner written notice that, if the
failure continues for a further 14 days after the notice is given,
the practitioner may be dealt with for professional
misconduct.
(4) If notice under subsection (3) is given and the failure
continues for the 14 day period—
(a) the Australian legal practitioner is taken to have
committed professional misconduct, unless the
practitioner has a reasonable excuse for not complying
with the requirement within the period; and
(b) the commissioner may apply to the tribunal for an order
in relation to the charge that the practitioner has
committed professional misconduct as stated in
paragraph (a) as if the application were an application in
relation to a complaint against the practitioner.
(5) In a hearing before the tribunal about a charge of professional
misconduct, a copy of the notice mentioned in subsection (3)
[s 444]
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Part 4.6 Investigations
Current as at 1 November 2013 Page 341
and any enclosures with the notice are evidence of the matters
in the notice and the enclosures.
(6) An Australian legal practitioner may refuse to give the entity
an explanation of a matter being investigated if—
(a) the practitioner satisfies the entity that to give the
explanation would contravene, or invalidate, a policy for
professional indemnity insurance held by the
practitioner; or
(b) the explanation would tend to incriminate the
practitioner.
(7) A regulation may provide for how part 4.9 applies to an
application to the tribunal for an order in relation to a charge
that a legal practitioner has committed professional
misconduct as stated in subsection (4)(a) and may be dealt
with under that part as an application in relation to a
complaint against the practitioner.
444 Referral of costs for assessment
For the purpose of investigating a complaint, the entity
carrying out an investigation as mentioned in section 435 or
436 may refer a matter to a person, whom the entity considers
is qualified because the person has the necessary expertise or
experience, to assess costs charged or claimed by a law
practice.
445 Regulation may provide for covering cost of assessment
under s 443 or 444
A regulation may provide for the way in which the cost of an
assessment under section 443 or 444 is to be met, including
requiring an amount to be paid before the assessment or
recovering the amount of the assessment as a debt.
[s 446]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.7 Decision of commissioner
Page 342 Current as at 1 November 2013
446 Powers of commissioner relating to complaint or
investigation matter relating to unlawful operator
(1) This section applies after a complaint or investigation matter
about an unlawful operator has been investigated.
(2) As the commissioner considers it appropriate, the
commissioner may—
(a) start proceedings to prosecute the unlawful operator
under this Act; or
(b) give to the commissioner of police the results of the
investigation; or
(c) refer the complaint or investigation matter to the law
society for further investigation; or
(d) decide to no longer deal with the matter the subject of
the complaint or investigation matter.
(3) Subsection (2)(a) does not limit the Acts Interpretation Act
1954, section 42.
(4) For subsection (2)(b), the commissioner may enter into
arrangements with the commissioner of police.
Part 4.7 Decision of commissioner
447 Decision of commissioner to start proceeding under ch 4
As the commissioner considers appropriate in relation to a
complaint or investigation matter that has been or continues to
be investigated, other than a complaint or investigation matter
about the conduct of an unlawful operator, the commissioner
may start a proceeding under this chapter before a disciplinary
body.
[s 448]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.8 General procedural matters
Current as at 1 November 2013 Page 343
448 Dismissal of complaint
(1) The commissioner may dismiss the complaint or investigation
matter if satisfied that—
(a) there is no reasonable likelihood of a finding by a
disciplinary body of—
(i) for an Australian legal practitioner—either
unsatisfactory professional conduct or professional
misconduct; or
(ii) for a law practice employee—misconduct in
relation to the relevant practice; or
(b) it is in the public interest to do so.
(2) The commissioner must give the respondent and any
complainant written notice about the commissioner’s decision
to dismiss the complaint or investigation matter.
449 Record of decision
The commissioner must cause a record of his or her decision
about a complaint or an investigation matter, together with
reasons for the decision, to be kept for each complaint or
investigation matter dealt with under this part.
Part 4.8 General procedural matters
450 Duty to deal with complaints efficiently and expeditiously
The commissioner must, under this Act, deal with complaints
as efficiently and expeditiously as is practicable.
Editor’s note—
See section 434 (Commissioner may delay dealing with complaint).
[s 451]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.9 Proceedings in disciplinary body
Page 344 Current as at 1 November 2013
451 Duty to inform complainant about action taken for
complaint
(1) The commissioner must keep a complainant informed about
the way the complaint is dealt with.
(2) Without limiting subsection (1), the commissioner must give
the complainant—
(a) notice of the receipt of the complaint by the
commissioner; and
(b) a copy of any discipline application made because of the
complaint; and
(c) written notice of the date set down for starting the
hearing for the discipline application; and
(d) written notice of a decision of a disciplinary body
relating to the complaint.
(3) This section is subject to sections 650 and 656D.
Part 4.9 Proceedings in disciplinary
body
452 Starting proceeding before a disciplinary body
(1) The commissioner may apply—
(a) to the tribunal for an order against an Australian legal
practitioner in relation to a complaint against the legal
practitioner or an investigation matter; or
(b) to the committee for an order—
(i) against an Australian legal practitioner in relation
to a complaint against the legal practitioner or an
investigation matter; or
[s 453]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.9 Proceedings in disciplinary body
Current as at 1 November 2013 Page 345
(ii) against a law practice employee in relation to a
complaint against the employee or an investigation
matter involving the employee.
(2) An application under subsection (1) is a discipline
application.
453 Hearings
The disciplinary body must hear and decide each allegation
stated in the discipline application.
454 Joinder by committee
The committee may order the joinder of more than 1
discipline application involving the same Australian legal
practitioner or law practice employee or different Australian
legal practitioners or law practice employees.
Note—
See the QCAT Act, section 42 for joinders by the tribunal.
455 Variation of discipline application
(1) The disciplinary body may vary a discipline application by
omitting allegations or including additional allegations, if the
body is satisfied that it is reasonable to do so having regard to
all the circumstances.
(2) Without limiting subsection (1), when considering whether or
not it is reasonable to vary a discipline application, the
disciplinary body must have regard to whether varying the
application will affect the fairness of the proceeding.
(3) The inclusion of an additional allegation is not precluded on
any or all of the following grounds—
(a) the additional allegation has not been the subject of a
complaint;
[s 456]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.9 Proceedings in disciplinary body
Page 346 Current as at 1 November 2013
(b) the additional allegation has not been the subject of an
investigation;
(c) the alleged conduct happened more than 3 years ago,
including conduct that happened before the
commencement of section 430.
456 Decisions of tribunal about an Australian legal
practitioner
(1) If, after the tribunal has completed a hearing of a discipline
application in relation to a complaint or an investigation
matter against an Australian legal practitioner, the tribunal is
satisfied that the practitioner has engaged in unsatisfactory
professional conduct or professional misconduct, the tribunal
may make any order as it thinks fit, including any 1 or more of
the orders stated in this section.
(2) The tribunal may, under this subsection, make 1 or more of
the following in a way it considers appropriate—
(a) an order recommending that the name of the Australian
legal practitioner be removed from the local roll;
(b) an order that the practitioner’s local practising certificate
be suspended for a stated period or cancelled;
(c) an order that a local practising certificate not be granted
to the practitioner before the end of a stated period;
(d) an order that—
(i) imposes stated conditions on the practitioner’s
practising certificate granted or to be issued under
this Act; and
(ii) imposes the conditions for a stated period; and
(iii) specifies the time, if any, after which the
practitioner may apply to the tribunal for the
conditions to be amended or removed;
[s 456]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.9 Proceedings in disciplinary body
Current as at 1 November 2013 Page 347
(e) an order publicly reprimanding the practitioner or, if
there are special circumstances, privately reprimanding
the practitioner;
(f) an order that no law practice in this jurisdiction may, for
a period stated in the order of not more than 5 years—
(i) employ or continue to employ the practitioner in a
law practice in this jurisdiction; or
(ii) employ or continue to employ the practitioner in
this jurisdiction unless the conditions of
employment are subject to conditions stated in the
order.
(3) The tribunal may, under this subsection, make 1 or more of
the following—
(a) an order recommending that the name of the Australian
legal practitioner be removed under a corresponding law
from an interstate roll;
(b) an order recommending that the practitioner’s interstate
practising certificate be suspended for a stated period or
cancelled under a corresponding law;
(c) an order recommending that an interstate practising
certificate not be, under a corresponding law, granted to
the practitioner until the end of a stated period;
(d) an order recommending—
(i) that stated conditions be imposed on the
practitioner’s interstate practising certificate; and
(ii) that the conditions be imposed for a stated period;
and
(iii) a stated time, if any, after which the practitioner
may apply to the tribunal for the conditions to be
amended or removed.
(4) The tribunal may, under this subsection, make 1 or more of
the following—
[s 456]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.9 Proceedings in disciplinary body
Page 348 Current as at 1 November 2013
(a) an order that the Australian legal practitioner pay a
penalty of a stated amount, not more than $100000;
(b) a compensation order;
(c) an order that the practitioner undertake and complete a
stated course of further legal education;
(d) an order that, for a stated period, the practitioner engage
in legal practice under supervision as stated in the order;
(e) an order that the practitioner do or refrain from doing
something in connection with the practitioner engaging
in legal practice;
(f) an order that the practitioner stop accepting instructions
as a public notary in relation to notarial services;
(g) an order that engaging in legal practice by the
practitioner is to be managed for a stated period in a
stated way or subject to stated conditions;
(h) an order that engaging in legal practice by the
practitioner is to be subject to periodic inspection by a
person nominated by the relevant regulatory authority
for a stated period;
(i) an order that the practitioner seek advice from a stated
person in relation to the practitioner’s management of
engaging in legal practice;
(j) an order that the practitioner must not apply for a local
practising certificate for a stated period.
(5) To remove any doubt, it is declared that the tribunal may make
any number of orders mentioned in any or all of subsections
(2), (3) and (4).
(6) Also, the tribunal may make ancillary orders, including an
order for payment by the Australian legal practitioner of
expenses associated with orders under subsection (4), as
assessed in or under the order or as agreed.
[s 457]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.9 Proceedings in disciplinary body
Current as at 1 November 2013 Page 349
(7) The tribunal may find a person has engaged in unsatisfactory
professional conduct even though the discipline application
alleged professional misconduct.
457 Enforcement of orders etc.
(1) This section applies to the following—
(a) an order under section 456 or 462 or part 4.10 in relation
to a discipline application;
(b) an order under the QCAT Act in relation to a discipline
application that the tribunal dealt with on a review of the
committee’s decision under section 469.
(2) If the order is a compensation order—
(a) the complainant may file the order in the registry of a
court of competent jurisdiction; and
(b) the tribunal’s principal registrar must give the Minister a
copy of the order and the tribunal’s reasons for making
the order.
(3) If the order is not a compensation order, the tribunal’s
principal registrar must—
(a) file the order in a Supreme Court registry; and
(b) give the Minister a copy of the order and the tribunal’s
reasons for making the order.
(4) On being filed under subsection (2) or (3), the order is an
order of the court in whose registry it is filed and may be
enforced accordingly.
(5) No charge may be made for filing an order under this section.
(6) Subsection (4) is subject to section 463.
458 Decisions of committee about discipline application
(1) This section applies if, after a committee has completed a
hearing of a discipline application in relation to a complaint or
[s 458]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.9 Proceedings in disciplinary body
Page 350 Current as at 1 November 2013
an investigation matter against an Australian legal practitioner
or law practice employee, the committee is satisfied—
(a) for the practitioner—that the practitioner has engaged in
unsatisfactory professional conduct; or
(b) for the employee—that the employee has engaged in
misconduct in relation to the relevant practice.
(2) The committee may make 1 or more of the following in
relation to an Australian legal practitioner—
(a) an order publicly reprimanding the practitioner or, if
there are special circumstances, privately reprimanding
the practitioner;
(b) an order that the practitioner pay a penalty of a stated
amount, not more than $10000;
(c) a compensation order;
(d) an order that the practitioner do or refrain from doing
something in connection with the practitioner engaging
in legal practice;
(e) an order that engaging in legal practice by the
practitioner is to be managed for a stated period in a
stated way or subject to stated conditions;
(f) an order that engaging in legal practice by the
practitioner is to be subject to periodic inspection by a
person nominated by the relevant regulatory authority
for a stated period;
(g) an order that the practitioner seek advice from a person
nominated by the relevant regulatory authority in
relation to the practitioner’s management of engaging in
legal practice.
(3) Also, the committee may make ancillary orders, including an
order for payment by the Australian legal practitioner of
expenses associated with orders under subsection (2), as
assessed in or under the order or as agreed.
[s 459]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.9 Proceedings in disciplinary body
Current as at 1 November 2013 Page 351
(4) For a law practice employee, the committee may order that the
law practice concerned and all other law practices in this
jurisdiction must not, for a period stated in the order of not
more than 5 years—
(a) continue to employ or employ the employee in a law
practice in this jurisdiction; or
(b) employ or continue to employ the employee in this
jurisdiction unless the conditions of employment are
subject to conditions stated in the order.
(5) In this section—
law practice employee includes a person who was a law
practice employee.
459 Orders to be filed in Supreme Court and information
notices to be given to parties etc.
(1) This section applies after the committee makes an order under
section 458 or 462 or part 4.10 in relation to a discipline
application.
(2) The commissioner must—
(a) give the other party or parties in relation to the discipline
application a copy of the order and an information
notice about the final decision about the discipline
application; and
(b) give the Minister a copy of the order.
(3) If there is no application as provided under the QCAT Act to
the tribunal for a review of the decision within the time
allowed for making the application, the commissioner must
file the order in a Supreme Court registry.
(4) On being filed, the order is an order of the Supreme Court and
may be enforced accordingly.
(5) Subsection (4) is subject to section 463.
[s 460]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.9 Proceedings in disciplinary body
Page 352 Current as at 1 November 2013
460 Interlocutory and interim orders
(1) A disciplinary body may make an interlocutory or interim
order as it considers appropriate before making its final
decision about a discipline application.
(2) Without limiting subsection (1), an order under section 456 or
474 may be made as an interlocutory or interim order.
461 Compliance with decisions and orders
(1) To the extent an entity has a function or power under this Act
relevant to an order of a disciplinary body, the entity must—
(a) give effect to an order made under section 456(2),
458(2) or 460; and
(b) enforce an order made under section 456(4) or (6),
458(2), (3) or (4) or 460 so far as the order relates to the
legal practice of, or other matters affecting, the
Australian legal practitioner concerned in this
jurisdiction.
(2) The commissioner must ensure that entities having functions
or powers under a corresponding law of another jurisdiction
are notified of the making and contents of—
(a) an order of the tribunal made under section 456(3) or
460 in relation to that corresponding law; and
(b) an order of the body made under section 456(4) or (6),
458(2), (3) or (4) or 460 so far as the order relates to the
legal practice of, or other matters affecting, the
Australian legal practitioner concerned in that other
jurisdiction.
(3) If the tribunal makes an order recommending that the name of
an Australian legal practitioner be removed from the local
roll, the Brisbane registrar must remove, or arrange with
another registrar for the removal of, the name from the local
roll.
[s 462]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.9 Proceedings in disciplinary body
Current as at 1 November 2013 Page 353
462 Costs
(1) A disciplinary body must make an order requiring a person
whom it has found to have engaged in prescribed conduct to
pay costs, including costs of the commissioner and the
complainant, unless the disciplinary body is satisfied
exceptional circumstances exist.
(2) A disciplinary body may make an order requiring a person
whom it has found not to have engaged in prescribed conduct
to pay costs, including costs of the commissioner and the
complainant, if the disciplinary body is satisfied that—
(a) the sole or principal reason why the proceeding was
started in the disciplinary body was the person’s failure
to cooperate with the commissioner or a relevant
regulatory authority; or
(b) there is some other reason warranting the making of an
order in the particular circumstances.
(3) Without limiting subsection (2), a disciplinary body that
makes an order under section 460 may make a further order
requiring an Australian legal practitioner, in relation to whom
the order under section 460 relates, to pay costs in relation to
the order.
(4) A disciplinary body may make an order requiring the
commissioner to pay costs, but may do so only if it is satisfied
that—
(a) the Australian legal practitioner or law practice
employee has not engaged in prescribed conduct; and
(b) the body considers that special circumstances warrant
the making of the order.
(5) An order for costs—
(a) may be for a stated amount; or
(b) may be for an unstated amount but must state the basis
on which the amount must be decided.
[s 462A]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.10 Compensation orders
Page 354 Current as at 1 November 2013
(6) An order for costs may state the terms on which costs must be
paid.
(7) The only other circumstances in which the tribunal exercising
its jurisdiction in relation to a disciplinary application may
award costs are the circumstances stated in the QCAT Act,
section 103 or 104.
Note—
See the QCAT Act, sections 106 to 109 for provisions about the tribunal
awarding costs.
(8) In this section—
engaged in prescribed conduct means engaged in
unsatisfactory professional conduct or professional
misconduct, or engaged in misconduct in relation to a relevant
practice, as mentioned in section 456(1) or 458(1).
462A Institution of proceedings by the commissioner
The commissioner may bring a proceeding under this part for
the imposition or enforcement of a penalty.
463 Other remedies not affected
This part does not affect any other remedy available to a
complainant.
Part 4.10 Compensation orders
464 Meaning of compensation order
A compensation order is 1 or more of the following—
(a) an order that a law practice can not recover or must
repay the whole or a stated part of the amount that the
[s 465]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.10 Compensation orders
Current as at 1 November 2013 Page 355
law practice charged a complainant for stated legal
services;
(b) an order discharging a lien possessed by a law practice
in relation to a stated document or class of documents;
(c) an order that a law practice carry out stated work for a
stated person without a fee or for a stated fee;
(d) an order that a law practice pay to a complainant an
amount by way of compensation for pecuniary loss
suffered because of conduct that has been found to be—
(i) unsatisfactory professional conduct or professional
misconduct of an Australian legal practitioner
involved in the relevant practice; or
(ii) misconduct of a law practice employee in relation
to the relevant practice.
465 Compensation order relating to pecuniary loss
(1) Unless the parties agree, a compensation order that is the type
of order mentioned in section 464(d) must not be made unless
the disciplinary body making the order is satisfied—
(a) if there is a complainant in relation to the discipline
application—that the complainant has suffered
pecuniary loss because of the conduct concerned; and
(b) that it is in the interests of justice that an order of that
type be made.
(2) Also, a compensation order of the type mentioned in section
464(d) for a pecuniary loss for which the relevant complainant
has received or is entitled to receive either of the following
must not be made—
(a) compensation under an order that has been made by a
court;
(b) compensation from the fidelity fund, or a fund of
another jurisdiction under a corresponding law of that
[s 466]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.10 Compensation orders
Page 356 Current as at 1 November 2013
jurisdiction, if a claim for payment from the fidelity
fund or other fund has been made or decided.
466 Effect of compensation order
(1) A compensation order preventing recovery of an amount of
the type mentioned in section 464(a) is effective even if a
proceeding to recover the amount, or any part of it, has been
started by or for the law practice.
(2) A compensation order requiring repayment of an amount of
the type mentioned in section 464(a) is effective even if a
court has ordered payment of the amount, or an amount of
which it is part, in a proceeding brought by or for the law
practice.
(3) A compensation order requiring payment of an amount of
more than $7500 by way of monetary compensation of the
type mentioned in section 464(d) must not be made unless the
complainant and the law practice both consent to the order.
467 Other remedies not affected
The recovery of an amount awarded by a compensation order
does not affect any other remedy available to a complainant,
but an amount so awarded must be taken into account in
another proceeding by or for the complainant in relation to the
same loss.
[s 468]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.10A Appeals from decisions of disciplinary bodies
Current as at 1 November 2013 Page 357
Part 4.10A Appeals from decisions of
disciplinary bodies
468 Appeal may be made to Court of Appeal from tribunal’s
decision
(1) The following may appeal a decision of the tribunal to the
Court of Appeal—
(a) a party dissatisfied with the tribunal’s decision;
(b) the Minister.
(2) The appeal is by way of a rehearing on the evidence given in
the matter before the tribunal.
(3) However, subsection (2) does not prevent the Court of Appeal
from giving leave to introduce further evidence, whether
fresh, additional or substituted, if the court considers the
further evidence may be material to the appeal.
(4) To remove any doubt, it is declared that the QCAT Act,
section 149 does not apply to a decision of the tribunal
exercising its jurisdiction under this Act.
469 Application to tribunal for review of committee’s decision
(1) A party dissatisfied with a final decision of the committee
about a discipline application may apply, as provided under
the QCAT Act, to the tribunal for a review of the decision.
(2) In the proceeding before QCAT for the review—
(a) the committee is not a party; and
(b) the commissioner is a party.
470 Appeal to Court of Appeal in relation to a decision of
committee
(1) This section applies to a decision of the committee that, under
section 459(4), has become an order of the Supreme Court.
[s 471]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.11 Publicising disciplinary action
Page 358 Current as at 1 November 2013
(2) A person may, with the leave of the Court of Appeal, appeal
against the order by appealing to that court.
(3) The appeal is by way of a rehearing on the evidence given in
the matter before the committee.
(4) However, subsection (3) does not prevent the Court of Appeal
from giving leave to introduce further evidence, whether
fresh, additional or substituted, if the court considers the
further evidence may be material to the appeal.
Part 4.11 Publicising disciplinary action
471 Definition for pt 4.11
In this part—
disciplinary action means—
(a) the making of an order by a court or the tribunal that
finds an Australian legal practitioner has engaged in
professional misconduct under this Act, a previous Act
or under a corresponding law; or
(b) any of the following actions under this Act or under a
corresponding law, following a finding by a court or the
tribunal of unsatisfactory professional conduct or
professional misconduct by an Australian legal
practitioner—
(i) the removal of the practitioner’s name from an
Australian roll;
(ii) the suspension or cancellation of an Australian
practising certificate of the practitioner;
(iii) the refusal to grant or renew an Australian
practising certificate to the practitioner;
[s 472]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.11 Publicising disciplinary action
Current as at 1 November 2013 Page 359
(iv) the appointment of a receiver of all or any of the
practitioner’s property or the appointment of a
manager for the practitioner’s law practice; or
(c) the making of an order by the committee under section
458(4).
472 Discipline register
(1) The commissioner must keep a register (the discipline
register) about the following—
(a) disciplinary action taken under this Act against an
Australian legal practitioner or in relation to a law
practice employee;
(b) disciplinary action taken under a corresponding law
against an Australian legal practitioner who is or was
admitted to the legal profession under this Act or a
previous Act or practising in this jurisdiction, when the
conduct that is the subject of the disciplinary action
happened.
(2) The discipline register must include—
(a) the full name of the person against whom the
disciplinary action was taken and the law practice who
employs or employed the person; and
(b) the person’s business address or former business
address; and
(c) for an Australian legal practitioner—the practitioner’s
home jurisdiction; and
(d) particulars of the disciplinary action taken; and
(e) other particulars prescribed under a regulation.
(3) The discipline register may be kept in a form decided by the
commissioner, including forming part of other registers.
(4) The discipline register must be available for public inspection
on—
[s 473]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.11 Publicising disciplinary action
Page 360 Current as at 1 November 2013
(a) the internet site of the commissioner; or
(b) an internet site identified on the internet site of the
commissioner.
(5) Information recorded in the discipline register may be given to
members of the public in another way approved by the
commissioner.
(6) The commissioner may cause any error in or omission from
the discipline register to be corrected.
(7) The requirement to keep the discipline register applies only in
relation to disciplinary action taken after the commencement
of this section, but details relating to earlier disciplinary action
may be included in the register.
473 Other means of publicising disciplinary action
(1) The commissioner may publicise disciplinary action taken
against a person in any way the commissioner considers
appropriate.
(2) Nothing in this section affects the provisions of this part
relating to the discipline register.
474 Quashing of disciplinary action
(1) If disciplinary action is quashed on appeal or review, any
reference to that disciplinary action must be removed from the
discipline register.
(2) If disciplinary action is quashed on appeal or review after the
action was publicised by the commissioner under section 473,
the result of the appeal or review must be publicised in the
same way by the commissioner.
475 Liability for publicising disciplinary action
(1) No liability is incurred by a protected person in relation to
anything done or omitted to be done in good faith for the
purpose of—
[s 475]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.11 Publicising disciplinary action
Current as at 1 November 2013 Page 361
(a) publicising disciplinary action taken against a person or
relating to a law practice; or
(b) performing the functions or exercising the powers of the
commissioner under this chapter; or
(c) keeping, publishing or enabling access to the discipline
register.
(2) Without limiting subsection (1), no liability, including liability
in defamation, is incurred by a protected person publishing in
good faith—
(a) information about disciplinary action—
(i) recorded in the discipline register; or
(ii) otherwise publicised by the commissioner under
this part; or
(b) matter containing that information, or matter purporting
to contain that information where the matter is incorrect;
or
(c) a fair report or summary of that information.
(3) In this section—
protected person means—
(a) the State; or
(b) the commissioner; or
(c) a regulatory authority; or
(d) a person responsible for keeping a record about
disciplinary action, or information about disciplinary
action, under a corresponding law; or
(e) an internet service provider or internet content host; or
(f) a person acting at the direction of the State or any person
or body mentioned in paragraphs (b) to (d).
[s 476]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.11 Publicising disciplinary action
Page 362 Current as at 1 November 2013
476 Disciplinary action taken because of infirmity, injury or
illness
(1) Disciplinary action taken against a person because of
infirmity, injury or mental or physical illness is not to be
recorded in the discipline register or otherwise publicised
under this part.
(2) Subsection (1) does not apply if the disciplinary action
involves—
(a) the suspension or cancellation of the person’s practising
certificate; or
(b) a refusal to grant or renew an Australian practising
certificate applied for by the person; or
(c) a regulation of the person’s right to engage in legal
practice;
but in that case the reason for the disciplinary action, and
other information relating to the infirmity, injury or mental or
physical illness, must not be recorded in the register or
otherwise publicised under this part without the person’s
consent.
477 General provisions about disclosure of information
(1) The provisions of this part are subject to any order made by
any of the following if the order regulates the disclosure of
information—
(a) a disciplinary body in relation to disciplinary action
taken under this chapter;
(b) a corresponding disciplinary body in relation to
disciplinary action taken under a corresponding law;
(c) a court or tribunal of this or another jurisdiction,
including the tribunal exercising jurisdiction other than
jurisdiction mentioned in paragraph (a).
(2) However, despite the order mentioned in subsection (1), the
name and other identifying particulars of the person against
[s 478]
Legal Profession Act 2007
Chapter 4 Complaints and discipline
Part 4.12 Inter-jurisdictional provisions
Current as at 1 November 2013 Page 363
whom the disciplinary action was taken and the law practice
who employs or employed the person, and the kind of
disciplinary action taken—
(a) must be recorded in the discipline register; and
(b) may be otherwise publicised under this part.
(3) Section 705 is subject to this part.
Part 4.12 Inter-jurisdictional provisions
478 Protocols
(1) The commissioner may enter into arrangements (cross-border
protocols) with corresponding authorities about investigating
and dealing with conduct that appears to have happened in
more than 1 jurisdiction.
(2) In particular, a cross-border protocol may provide for—
(a) principles to help in deciding where conduct happens,
either generally or in stated classes of cases; and
(b) giving and receiving consent for conduct happening in a
jurisdiction to be dealt with under a law of another
jurisdiction; and
(c) procedures to be adopted for requesting and conducting
the investigation of an aspect of complaints or
investigation matters under this part.
479 Request to another jurisdiction to investigate complaint
or investigation matter
(1) The commissioner may request a corresponding authority to
arrange for the investigation of an aspect of a complaint or an
investigation matter that is being dealt with by the
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commissioner and to give the commissioner a report on the
result of the investigation.
(2) A report on the result of the investigation received from—
(a) the corresponding authority; or
(b) a person or body authorised by the corresponding
authority to conduct the investigation;
may be used and considered by the commissioner and a
disciplinary body in the course of dealing with a discipline
application under this chapter.
480 Request from another jurisdiction to investigate
complaint
(1) This section applies in relation to a request received by the
commissioner from a corresponding authority to arrange for
the investigation of an aspect of a complaint under a
corresponding law being dealt with under that law.
(2) The commissioner may conduct the investigation or authorise
another entity to conduct it.
(3) The provisions of this chapter relating to the investigation of a
complaint or investigation matter apply, with any necessary
changes, in relation to the investigation that is the subject of
the request.
(4) The commissioner must give a report on the result of the
investigation to the corresponding authority.
481 Sharing of information with corresponding authorities
(1) This section applies to each of the following entities—
(a) the commissioner;
(b) the law society;
(c) the bar association.
(2) Each entity may, either separately or jointly with another
entity or entities, enter into arrangements with a
[s 482]
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corresponding authority for providing information to the
corresponding authority about—
(a) complaints and investigations under this chapter; and
(b) any action taken in relation to complaints made or
investigations conducted under this chapter, including
decisions of a disciplinary body under this chapter.
(3) The arrangement must include the following—
(a) the purposes for which the corresponding authority is
given the information;
(b) how the corresponding authority will protect the privacy
of the information.
482 Cooperation with other authorities
(1) This section applies when a prescribed entity is dealing with a
complaint or investigating an investigation matter.
(2) The prescribed entity may, either separately or jointly with
another prescribed entity or prescribed entities, consult and
cooperate with another person or body, whether in Australia
or a foreign county, who or that has or may have relevant
information or powers in relation to the person against whom
the complaint was made or the person under investigation.
(3) For subsection (2), the prescribed entity and the other person
or body may exchange information concerning the complaint
or investigation.
(4) In this section—
prescribed entity means an entity to which section 481
applies.
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483 Request for information relevant to a complaint or
investigation matter
(1) The commissioner may ask a person or body in Australia or
elsewhere that may have information relevant to a complaint
or investigation matter for information.
(2) Before asking for the information, the commissioner must
decide the way in which the request is to be phrased having
regard to the respondent’s right to privacy in relation to the
matter the subject of the complaint or investigation matter.
(3) For the purpose of asking for information, the commissioner
may give information to a foreign registration authority if the
commissioner considers it necessary to do so to establish the
matters relevant to the investigation of the complaint or
investigation matter.
484 Compliance with recommendations or orders made
under corresponding laws
(1) Entities having relevant functions or powers under this Act
must—
(a) give effect to or enforce any recommendation or order of
a corresponding disciplinary body, or other
corresponding authority, made under a corresponding
law in relation to functions or powers exercisable under
this Act; and
(b) give effect to or enforce any recommendation or order of
a corresponding disciplinary body, or other
corresponding authority, made under a corresponding
law so far as the recommendation or order relates to the
practice of law by the Australian legal practitioner or
law practice concerned in this jurisdiction.
(2) If a corresponding disciplinary body makes a
recommendation or order that a person’s name be removed
from the local roll of this jurisdiction, the Brisbane registrar
must remove, or arrange with another registrar for the removal
of, the name from the local roll.
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(3) If a corresponding disciplinary body makes an order that a
local Australian legal practitioner pay a fine, a copy of the
order may be filed in the Supreme Court and the order may be
enforced as if it were an order of the court.
485 Other powers or functions not affected
Nothing in this part affects any functions or powers that a
person or body has apart from this part.
Part 4.13 Miscellaneous
486 Information about complaints procedure
The commissioner must—
(a) produce information about the making of complaints
and the procedure for dealing with complaints; and
(b) ensure that information is available to members of the
public on request; and
(c) give help to members of the public in making
complaints.
487 Protection from liability for notification of conduct or
making a complaint
(1) This section applies if a person makes a complaint or
otherwise gives information to the commissioner, the law
society or the bar association about conduct that is—
(a) conduct of an Australian lawyer or a law practice
employee; or
(b) a possible contravention of section 24 or 25.
(2) The person is not liable, civilly (including in an action for
defamation), criminally or under an administrative process for
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making the complaint, giving the notice or otherwise giving
information to the commissioner, the law society or the bar
association relating to the complaint or notice, including, for
example, giving further information under section 431.
(3) Also, merely because the person makes the complaint, gives
the notice or otherwise gives information as mentioned in
subsection (2), the person can not be held to have—
(a) breached any code of professional etiquette or ethics; or
(b) departed from accepted standards of professional
conduct.
488 Failure to comply with order of a disciplinary body
A failure by a person to comply with an order of a disciplinary
body under this Act, or an order of a corresponding
disciplinary body under a corresponding law, is capable of
being unsatisfactory professional conduct or professional
misconduct.
489 Performance criteria
(1) The commissioner must develop performance criteria relating
to the handling of complaints under this chapter.
(2) The commissioner must include the relevant criteria in the
commissioner’s annual report under this Act, together with an
assessment of the commissioner’s performance against the
criteria in the period to which the report relates.
490 Annual and other reports to the Minister
(1) By 31 October after the end of each financial year, the
commissioner must give to the Minister a report for the
immediately preceding financial year.
(2) The report must deal with the system established under this
Act or a previous Act for dealing with complaints.
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(3) Also the Minister may, by written notice, ask the
commissioner to provide a report at any time for a period
stated in the Minister’s request about the system or about an
aspect of the system stated in the notice.
(4) If the Minister makes a request under subsection (3), the
commissioner must comply with the request and give the
relevant report to the Minister by the date stated in the notice.
(5) The commissioner may include other matters the
commissioner considers appropriate in a report under this
section, including, for example, recommendations about the
system.
(6) The Minister must table in the Legislative Assembly a report
given to the Minister under subsection (1), within 14 days
after receiving the report.
491 Confidentiality of client communications
(1) An Australian legal practitioner must comply with a
requirement under this chapter or a requirement under the
QCAT Act, to answer a question or to produce information or
a document, despite any duty of confidentiality about a
communication between the legal practitioner and a client, but
only if the client is the complainant or consents to its
disclosure.
(2) A provision of an agreement with a client in settlement of a
matter that involves conduct that may be the subject of a
complaint under this chapter is not enforceable to prevent the
client disclosing, or consenting to the disclosure of,
information or a document for an investigation of the
complaint, whether or not the complaint has been withdrawn,
or an investigation matter.
(3) It is a reasonable excuse for the Australian legal practitioner
not to comply with a requirement mentioned in subsection (1)
if complying with the requirement might tend to incriminate
the practitioner.
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(4) For this section, the commissioner may give an undertaking to
a person regarding non-disclosure of information or a
document given under subsection (3).
492 Waiver of legal professional privilege or benefit of duty of
confidentiality
(1) This section applies if a person signs a document waiving the
person’s legal professional privilege, or the benefit of a duty
of confidentiality, about a matter (the waived matter) relating
to the subject of a complaint or an investigation matter.
(2) An Australian legal practitioner can not refuse to disclose to
the commissioner or relevant regulatory authority any
information about the waived matter on the grounds of legal
professional privilege or the duty of confidentiality.
(3) However, the Australian legal practitioner may refuse to
disclose the information on the grounds that it might tend to
incriminate the practitioner.
Chapter 5 External intervention
Part 5.1 Preliminary
493 Main purpose of ch 5
(1) The main purpose of this chapter is to ensure that an
appropriate range of options is available for intervention in the
business and professional affairs of law practices and
Australian-registered foreign lawyers for the purpose of
protecting the interests of—
(a) the general public; and
(b) clients; and
[s 494]
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(c) lawyers, including the owners and employees of law
practices, so far as their interests are not inconsistent
with the interests of the general public and clients.
(2) It is intended that interventions happen consistently with—
(a) similar interventions in other jurisdictions, especially if
a law practice operates in this jurisdiction and 1 or more
other jurisdictions; and
(b) other provisions of this Act.
Note—
This chapter—
(a) applies to all law practices, regardless of whether they are
incorporated under the Corporations Act; and
(b) is intended to apply so that it, rather than the Corporations Act or
the Bankruptcy Act 1966 (Cwlth), applies in relation to the
winding-up of trust property and the carrying on of a law practice
by an external intervener.
494 Definitions for ch 5
(1) In this chapter—
external intervener means a supervisor, manager or receiver
under this chapter.
external intervention means the appointment of, and the
exercise of the functions and powers of, a supervisor, manager
or receiver under this chapter.
regulated property, of a law practice, means the following—
(a) trust money or trust property received, receivable or held
by the law practice;
(b) interest, dividends or other income or anything else
derived from or acquired with money or property
mentioned in paragraph (a);
(c) documents or records of any description relating to
anything mentioned in paragraph (a) or (b);
[s 495]
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