Minutes of Proceedings - 2003-08-20
- 1. MEETING:
- The Assembly met at 10am. The Speaker, the Honourable L. M. Braham, took the Chair.
2. PRAYERS.
3. PETITION:
- The Member for Blain (Mr Mills) presented petition No. 38, from 545 petitioners relating to improvements to the Palmerston Boat Ramp. (Paper 1032)
Petition read.
Response to petitions: The Clerk, pursuant to Standing Order 100A, advised Members of the receipt of a response to a petition No. 34, relating to Aranda House in Alice Springs and that the text of the response would be included in the Hansard record. (Paper 1033)
4. MINISTERIAL REPORTS:
- Sergio de Mello: The Chief Minister (Ms Martin) reported on the death of a United Nations envoy in charge of the mission in Iraq, Mr Sergio Vieira de Mello.
Mr Reed responded thereto.
Schools literacy and numeracy, progress: The Minister for Employment, Education and Training (Mr Stirling) reported on the progress of literacy and numeracy in schools generally and at Driver, Bakewell and Gray Primary Schools at Palmerston.
Mr Mills responded thereto.
Mr Stirling responded accordingly.
Tourism Minister’s Council, 2003: The Minister for Tourism (Dr Burns) reported on the federal government’s Green Paper outlining a 10 year plan for the Australian Tourism Industry and 5 point plan by Australian States.
Ms Carney responded thereto.
Dr Burns responded accordingly.
Dental awareness month: The Minister for Health and Community Services (Mrs Aagaard) reported on dental care of children and fluoridation of water in remote communities.
Ms Carter responded thereto.
Mrs Aagaard responded accordingly.
Ministerial Reports noted, pursuant to Sessional Order.
- The Minister for Justice and Attorney-General (Dr Toyne), pursuant to notice, presented a Bill for an Act to provide for the incorporation of associations and for related purposes.
Bill read a first time.
Dr Toyne moved – That the Bill be now read a second time.
Debate ensued.
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Visitors: The Speaker advised Members of the presence in the public galleries of Year 11 students from Dripstone High School accompanied by Ms Michelle Truscott and Mrs Margaret Vatskalis. On behalf of all Members the Speaker extended a warm welcome to the visitors.
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Debate continued.On the motion of the Member for Goyder (Mr Maley) debate was adjourned.
6. LEGAL PRACTITIONERS AMENDMENT (INCORPORATED LEGAL PRACTICES AND MULTI-DISCIPLINARY PARTNERSHIPS) BILL 2003 (Serial 142):
- The Order of the Day having been read for the resumption of debate on the question – That the Bill be now read a second time –
Debate resumed.
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Visitors: The Speaker advised Members of the presence in the public galleries of participants of the Discovering Democracy Teacher’s Conference accompanied by the conference organiser Ms Colleen Williams. On behalf of all Members the Speaker extended a warm welcome to the visitors.
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Debate continued.Question – put and passed.
Bill read a second time.
The Assembly resolved itself into a Committee of the Whole for consideration of the Bill.
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In Committee
(Chairman – Mr Wood)
In Committee
(Chairman – Mr Wood)
Clauses 1 to 4, by leave, taken together and agreed to.
New Clause 4A –
On the motion of the Minister for Justice and Attorney-General (Dr Toyne) the following amendment was agreed to, after debate.
Insert after clause 4 –
- “4A. Repeal and substitution
- Section 16 of the Principal Act is repealed and the following substituted:
16. Counsel to practise independently
- A Counsel must not, in the Territory –
(a) practise other than as a barrister and independently of another practitioner;
(b) practise as a barrister in partnership with any person or as the employee of any person; or
(c) hold office as a lawyer director (within the meaning of Part IVAA) of an incorporated legal practice.
Penalty: 50 penalty units.”.
Clause 5 read.
On the motion of Dr Toyne the following amendment was agreed to, after debate –
Proposed section 35AC, definition of 'corporation'. Omit - paragraphs (b) and (c).
On the motion of Dr Toyne the following further amendment was agreed to, after debate –
Proposed section 35AC, definition of 'director'. Omit – the whole definition and insert in its stead –
- “'director' means –
- (a) in relation to a company within the meaning of the Corporations Act 2001– a director as defined in section 9 of that Act, but does not include a person who is not validly appointed as a director; or
(b) in relation to any other body corporate, or body corporate of a kind, prescribed by the Regulations – a person specified or described in the Regulations;”.
On the motion of Dr Toyne the following further amendment was agreed to, after debate –
Proposed section 35AC, definition of 'disqualified person', after paragraph (b). Insert –
- “(c) the renewal of whose practising certificate has been refused under this Act or a corresponding law, and to whom a practising certificate has not afterwards been granted under this Act or a corresponding law;
(d) who is the subject of an order under this Act or a corresponding law prohibiting a lawyer from employing or paying the person in connection with the lawyer's practice;
(e) who is the subject of an order under this Act or a corresponding Act prohibiting a lawyer from being a partner of the person in a business that includes the provision of legal services; or
(f) who is the subject of an order under section 35AZD or 35AZZB or under provisions of a corresponding law that correspond to section 35AZD or 35AZZB;”.
On the motion of Dr Toyne the following further amendment was agreed to, after debate –
Proposed section 35AC, definition of 'officer'. Omit – the whole definition and insert in its stead –
- “'officer' means –
- (a) in relation to a company within the meaning of the Corporations Act 2001 – an officer as defined in section 9 of that Act; or
(b) in relation to any other body corporate, or body corporate of a kind, prescribed by the Regulations – a person specified or described in the Regulations;”.
Proposed section 35AC, definition of 'related body corporate'. Omit – the whole definition and insert in its stead –
“'related body corporate' means –
- (a) in relation to a company within the meaning of the Corporations Act 2001 – a related body corporate within the meaning of section 50 of that Act; or
(b) in relation to any other body corporate, or body corporate of a kind, prescribed by the Regulations – a person specified or described in the Regulations.”.
On the motion of Dr Toyne the following further amendment was agreed to, after debate –
Proposed section 35AD(2)(b). Omit – the whole paragraph and insert in their stead -
“(b) the only legal services that the corporation provides are in-house legal services, namely legal services provided to the corporation concerning a proceeding or transaction to which the corporation or a related body corporate of the corporation is a party;”.
On the motion of Dr Toyne the following further amendment was agreed to, after debate –
After proposed section 35AD(2). Insert –
- “(2A) The Regulations may provide for or with respect to the application (with or without specified modifications) of provisions of this Act to corporations that are not incorporated legal practices because of subsection (2).”.
- On the motion of Dr Toyne the following further amendment was agreed to, after debate –
Proposed section 35AG. Omit – the whole section and insert in its stead –
- “35AG. Notice of intention to commence providing legal services
(1) A corporation must, before commencing to provide legal services in this jurisdiction, give the Law Society written notice of its intention to do so and containing the particulars prescribed by the Regulations.
Penalty: 500 penalty units.
Penalty: 500 penalty units.
(4) The giving of a notice under subsection (3) does not affect a corporation's liability under subsection (1).
35AGA. Notice of termination of provision of legal services
(1) A corporation must, within the prescribed period after it ceases to provide legal services in this jurisdiction, give the Law Society written notice of that fact and containing the particulars prescribed by the Regulations.
- Penalty: 500 penalty units.
After proposed section 35AJ(2). Insert –
- “(2A) An incorporated legal practice must not provide legal services in this jurisdiction during any period it is in default of director requirements under this section.
- Penalty: 50 penalty units.
- (a) it has at least one lawyer director; or
(b) a person is appointed under this section in relation to the practice.”.
Proposed section 35AN. Omit – the whole section and insert in its stead -
“35AN. Disclosure of obligations
- (1) If a person engages an incorporated legal practice to provide legal services, each lawyer director of the practice, and any lawyer employee who provides the legal services on behalf of the practice, must ensure that a disclosure, complying with the requirements of this section and the Regulations made for this section, is made to the person in connection with the provision of the legal services.
Penalty: 100 penalty units.
(2) The disclosure must be made by giving the person a notice in writing –
- (a) setting out –
- (i) the legal services to be provided; and
(ii) the non-legal services (if any) to be provided in connection with the provision of legal services;
(c) if some or all of the legal services will not be provided by a lawyer – identifying the services and indicating the status or qualifications of the person or persons who will provide the services; and
(d) stating that this Act applies to the provision of legal services but not to the provision of the non-legal services.
(3) The Regulations may provide for or with respect to the following:
- (a) the manner in which disclosure is to be made;
(b) additional matters required to be disclosed in connection with the provision of legal services or non-legal services by an incorporated legal practice.
(4) Without limiting subsection (3), the additional matters may include the kind of services provided by the incorporated legal practice and whether those services are or are not covered by the insurance or other provisions of this Act.
- (5) A disclosure under this section to a person about the provision of legal services may relate to the provision of legal services on one occasion or on more than one occasion.”.
On the motion of Dr Toyne the following further amendment was agreed to, after debate –
Proposed section 35AO(1). Omit – the whole subsection.
On the motion of Dr Toyne the following further amendment was agreed to, after debate –
Proposed section 35AO(2)(b). Omit – section 35AN(3)(c) and insert in its stead section 35AN.
On the motion of Dr Toyne the following further amendment was agreed to, after debate –
Proposed section 35AO, at the end. Insert –
“(2) The reference in subsection (1) to a legal service includes a legal service that the person who engaged the incorporated legal practice to provide the service might reasonably assume to be a legal service.”.
On the motion of Dr Toyne the following further amendment was agreed to, after debate –
Proposed section 35AZD(2)(a). Omit – section 206E and insert in its stead –
- “section 206C, 206D, 206E or 206F”.
On the motion of Dr Toyne the following further amendment was agreed to, after debate –
Proposed section 35AZH. Omit – the whole section and insert in its stead –
- “35AZH. External administration proceedings under other legislation
(1) This section applies to proceedings for the external administration (however expressed) of an incorporated legal practice, but does not apply to proceedings to which section 35AZG applies.
(2) The Law Society is entitled to be a party to the proceedings, unless the court determines that the proceedings do not concern or affect the provision of legal services by the incorporated legal practice.
(3) The court may, when exercising its jurisdiction in the proceedings, have regard to the interests of the clients of the incorporated legal practice who have been or are to be provided with legal services by the practice, as well as to the creditors and shareholders of the practice.
(4) Subsection (3) does not authorise the court to make any decision that is contrary to a specific provision of any legislation applicable to the incorporated legal practice.
35AZHA. Incorporated legal practice that is subject to receivership under this Act and Corporations Act 2001
(1) This section applies if an incorporated legal practice is the subject of both –
- (a) the appointment of a Part IX receiver; and
(b) the appointment of a Corporations Act administrator.
(3) Either or both of the receivers may apply to the Supreme Court for the resolution of issues arising from or in connection with the dual appointments and their respective powers, except if proceedings referred to in section 35AZG have been commenced.
(4) The Supreme Court may make any orders it considers appropriate, and the receivers are discharged from any liability if they act in accordance with the orders.
(5) The Law Society is entitled to be a party to the proceedings, unless the court determines that the proceedings do not concern or affect the provision of legal services by the incorporated legal practice.
(6) The provisions of subsections (3) and (4) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act 2001 in relation to the provisions of Chapter 5 of that Act.
(7) In this section –
- 'Corporations Act administrator' means a receiver, receiver and manager, liquidator (including a provisional liquidator), controller, administrator or deed administrator appointed under the Corporations Act 2001;
'Part IX receiver' means a receiver appointed under Part IX.
(1) This section applies if an incorporated legal practice is the subject of both –
- (a) the appointment of a Part IX receiver; and
(b) the appointment of an external administrator.
(3) The Part IX receiver or the external administrator (or both of them jointly) may apply to the Supreme Court for the resolution of issues arising from or in connection with the dual appointments and their respective powers.
(4) The Supreme Court may make any orders it considers appropriate, and the Part IX receiver and the external administrator are discharged from any liability if they act in accordance with the orders.
(5) The appropriate authority and the Regulator are entitled to be a party to the proceedings, unless the court determines that the proceedings do not concern or affect the provision of legal services by the incorporated legal practice.
(6) In this section –
- 'external administrator' means a person who is appointed to exercise power under other legislation of this jurisdiction and who is prescribed, or of a class prescribed, by the Regulations for this definition;
'Part IX receiver' means a receiver appointed under Part IX.”.
Proposed section 35AZJ. Omit – “An officer or employee of an incorporated legal practice” and insert in its stead “A person (whether or not an officer or employee of an incorporated legal practice)”.
On the motion of Dr Toyne the following further amendment was agreed to, after debate –
Proposed section 35AZT. Omit – the whole section and insert in its stead –
- “35AZT. Disclosure obligations
(1) If a person engages a multi-disciplinary partnership to provide legal services, each lawyer partner of the partnership, and any lawyer employee of the partnership who provides the legal services on behalf of the partnership, must ensure that a disclosure, complying with the requirements of this section, is made to the person in connection with the provision of the legal services.
- Penalty: 100 penalty units.
- (a) setting out –
- (i) the legal services to be provided; and
(ii) the non-legal services (if any) to be provided in connection with the provision of legal services;
(c) if some or all of the legal services will not be provided by an Australian lawyer – identifying those services and indicating the status or qualifications of the person or persons who will provide the services; and
(d) stating that this Act applies to the provision of legal services but not to the provision of the non-legal services.
- (a) the manner in which disclosure is to be made;
(b) additional matters required to be disclosed in connection with the provision of legal services or non-legal services by a multi-disciplinary partnership.
(5) A disclosure under this section to a person about the provision of legal services may relate to the provision of legal services on one occasion or on more than one occasion.”.
Proposed section 35AZU(1). Omit – the whole subsection.
Proposed section 35AZU(2)(b). Omit – “section 35AZT(3)(c)” and insert in its stead “section 35AZT”.
On the motion of Dr Toyne the following further amendment was agreed to, after debate –
Proposed section 35AZU, at the end. Insert –
“(2) The reference in subsection (1) to a legal service includes a legal service that the person who engaged the multi-disciplinary partnership to provide the service might reasonably assume to be a legal service.”.
Proposed section 35AZZA. Omit – “knowingly”.
Clause 5, as amended, agreed to.
Clauses 6 and 7, by leave, taken together and agreed to.
New clauses 7A and 7B -
On the motion of Dr Toyne the following amendment was agreed to, after debate –
After clause 7. Insert –
- 7A. Definition
Section 101B of the Principal Act is amended by inserting before the definition of "manager" the following –
- "'legal practitioner' includes an incorporated legal practice under Part IVAA;".
7B. Definition
Section 102 of the Principal Act is amended –
- (a) by omitting "legal practitioner; or" from paragraph (b) of the definition of "legal practitioner" in subsection (1) and substituting "legal practitioner;"; and
(b) by omitting paragraph (c) of the definition "legal practitioner" in subsection (1) and substituting the following:
- "(c) a locally registered foreign lawyer; or
(d) an incorporated legal practice under Part IVAA.".
Clause 14 read.
On the motion of Dr Toyne the following amendment was agreed to, after debate -
Subclause (3). Omit – the whole subclause and insert in their stead –
- “(3) Subject to subsection (4), on and after the commencement of section 13, the repealed Act applies to a practising company as if the repealed Act had not been repealed.
(4) If a practising company gives notice under section 35AG of the Legal Practitioners Act of its intention to operate as an incorporated legal practice under Part IVAA of that Act, the repealed Act ceases to apply to the company on the giving of the notice.
(5) However, subsection (4) does not affect the operation of sections 7 and 8 of the repealed Act in relation to anything done or omitted to be done under the sections before the notice is given.”.
Title agreed to.
Bill to be reported with amendments.
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The Acting Deputy Speaker (Ms Lawrie) resumed the Chair, the Chairman (Mr Wood) reported accordingly and the report was adopted.On the motion of the Minister for Justice and Attorney-General (Dr Toyne) the Bill was read a third time and passed to be a proposed law.
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Suspension of sittings: The sittings of the Assembly was suspended between 11.50am and 2pm.––––––––––––––––
- The following notice was given –
Dr Toyne: To present the Business Tenancies (Fair Dealings) Bill 2003 (Serial 175).
Visitors: The Speaker advised Members of the presence in the public galleries of representatives of FORWAARD, accompanied by Mr Leon James and Mr Damien Tonson.
On behalf of all Members the Speaker extended a warm welcome to the visitors.
- 2pm Mr Maley to Ms Martin, referred to Dr Toyne.
2.04pm Mr Bonson to Mr Stirling.
2.07pm Mr Burke to Ms Martin.
2.11pm Mr Kiely to Mr Stirling.
Paper tabled: The Treasurer (Mr Stirling) laid on the Table the following Paper –
2.14pm Mr Burke to Ms Martin.
2.17pm Ms Scrymgour to Mrs Aagaard.
Paper tabled: The Minister for Health and Community Services (Mrs Aagaard) laid on the Table the following Paper –
2.20pm Mr Wood to Mr Vatskalis.
2.22pm Mr Burke to Ms Martin.
2.25pm Ms Lawrie to Ms Martin.
2.27pm Mr Burke to Ms Martin.
2.28pm Ms Lawrie to Mr Henderson.
2.33pm Mr Mills to Mr Stirling.
2.37pm Ms Scrymgour to Ms Martin.
2.42pm Dr Lim to Ms Martin.
2.44pm Ms Lawrie to Dr Toyne.
2.48pm Mr Reed to Ms Martin.
2.51pm Mr Wood to Mr Vatskalis.
2.53pm Mr McAdam to Dr Burns.
The Leader of Government Business (Mr Henderson) asked that further questions be placed on the Written Question paper.
- The Order of the Day having been read for the resumption of debate on the question – That the Assembly adopt the Report and its recommendations –
Debate resumed.
Question – put and passed.
- The Minister for Community Development (Mr Ah Kit) made a statement relating to the development of regional authorities and improving employment and social conditions in remote Aboriginal communities.
Paper tabled: The Minister for Community Development (Mr Ah Kit) laid on the Table the following Paper –
Mr Ah Kit moved – That the Assembly take note of the Statement.
Debate ensued.
Quorum: The Member for Drysdale (Mr Dunham) drew the attention of the Speaker to the lack of a quorum of the Assembly being present –
Bells having been rung and a quorum of the Assembly having been obtained –
Debate continued.
Question – put and passed.
- The Minister for Transport and Infrastructure (Mr Vatskalis) made a statement relating to their economic strategy for developing the Territory economy through a dependable transport system to connect people, goods and services.
Mr Vatskalis moved – That the Assembly take note of the Statement.
Debate ensued.
Paper tabled: The Minister for Transport and Infrastructure (Mr Vatskalis) laid on the Table the following Paper –
Debate continued.
Question – put and passed.
- The Chief Minister (Ms Martin) moved – That the Assembly do now adjourn.
Debate ensued.
Question – put and passed.
And the Assembly adjourned at 11.09pm on Wednesday 20 August 2003 until Thursday 21 August 2003 at 10am.
- PAPERS:
The following Paper was deemed to have been presented on Wednesday 20 August 2003:
Annual Report:
Menzies School of Health Research, 2001/02 (Paper 1036)
- ATTENDANCE
All Members attended the sittings.
Last updated: 04 Aug 2016