Legal Practitioners (Disciplinary Matters and Fidelity Fund) Amendment Bill 2025
28 October 2025
The Legal Practitioners (Disciplinary Matters and Fidelity Fund) Amendment Bill (Bill) proposes significant reforms to the regulation of the legal profession, including:
- An increase in the cap of the Legal Practitioners’ Fidelity Fund, which is used to fund the regulatory framework of the profession;
- The transfer of the jurisdiction of the Legal Practitioners Disciplinary Tribunal (LPDT) to the South Australian Civil and Administrative Tribunal (SACAT); and
- Expanding the powers of the Legal Profession Conduct Commissioner (LPCC).
The proposed reforms have previously been considered by the Law Society’s Executive, Council, and Ethics and Practice Committee.
The Society strongly supports the increase in the cap of the Fidelity Fund, which will ensure its long-term viability.
The Society also supports measures that will more efficiently deal with disciplinary matters and enhance public confidence in the legal profession. The Society had previously made a number of observations in respect of the proposed reforms, including with respect to:
- the introduction of new health assessment powers;
- the new penalty regime; and
- appointments to the Tribunal for legal disciplinary matters.
New Health Assessment Powers
Under the Bill, the LPCC (and the Supreme Court) will have the power to require a practitioner to undergo a health assessment by an LPCC-nominated assessor if the LPCC reasonably believes their fitness to practise is detrimentally affected by impairment.
Following assessment, the LPCC can, with the practitioner's consent, make orders for treatment, counselling, rehabilitation programs, or short-term suspension (up to three months).
If consent is refused, the assessment is not undertaken, or the matter is too serious for consent orders, the LPCC must apply to the Supreme Court for orders compelling assessment/treatment or affecting the practising certificate.
In commenting on the draft Bill, the Society had noted concerns that the new health assessment powers were intrusive and had proposed various safeguards including:
- providing relevant opportunities for the practitioner to be heard on the proposed exercise of such a power, particularly in circumstances where no finding of misconduct has been made;
- allowing practitioners to provide their own medical assessments undertaken which must be considered by the LPCC or Court;
- ensuring the principles of natural justice are upheld;
- re-considering the wording of the expression ‘reasonably believes, whether due to a complaint or for any other reason’ as this may be broadly construed and it would be expected that the LPCC/Court would have sufficient information to form such a belief, particularly if an investigation has not commenced;
- ensuring adequate review processes are in place, including on the issue of a notice and balancing the principles of open justice with review processes.
The Society is pleased to see that the Bill as introduced into Parliament contemplates a review mechanism as recommended and expects that these powers will be exercised having regard to the above considerations.
The Society had also noted that consideration should also be given to the specific circumstances/thresholds of the powers having regard to the immediacy of any risk and potential impact on practitioners. The Bill contemplates a program of treatment, suspension or potential cancellation of a practising certificate. In some cases, it is observed that risks may be adequately remedied through the imposition of conditions on a practising certificate or through the appointment of a Supervisor and Manager.
The Society has also observed that the section 77AA process may also be avoided if a practitioner has the opportunity of providing a suitable early undertaking not to practice for a period of time, or practice under various conditions whilst they seek voluntarily, medical assistance.
Transfer of Jurisdiction to SACAT
The Bill dissolves the LPDT and vests its functions in SACAT. It relies on the existing South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act) for procedural matters.
As noted, the Society supports measures that will more efficiently deal with disciplinary matters and enhance public confidence in the legal profession. The Society has expressed support to the proposal to transfer LPDT functions to SACAT, whilst ensuring that appropriate avenues for review to the Supreme Court remain in place. The Society asked that consideration be given to the rules of evidence and the make-up of those members who will consider such matters.
Specific provisions for legal profession matters are set out in relation to the constitution of SACAT for legal disciplinary matters. In short, the composition will be made up of three members, including a presiding designated member of SACAT, a legal practitioner assessor (who must be of at least five years’ standing), and an assessor who is representative of members of the public (non-legal). The Society notes this is similar to the panel composition for disciplinary matters involving health practitioners.
The Society has maintained that serious disciplinary matters should only be dealt with by senior legal practitioners. In this regard, it is pleased to note that the legal practitioner assessor must be of at least five years’ standing and, whilst it has advocated that appointments be approved by the Chief Justice, has sought to ensure that the presiding designated member should always be a member who meets the criteria under s 19(3)(a) of the SACAT Act, which is proposed under the reforms.
The Bill also provides that the President of SACAT must consult with the Chief Justice and the Society before designating a senior member of the Tribunal for legal disciplinary matters.
Penalties
The Bill proposes significant increases to fines that may be imposed by both the LPCC and the Tribunal.
Whilst penalties are often imposed as both specific and general deterrence, concern had been raised that the proposed fines may be disproportionately punitive, particularly in terms of their potential impact on practitioners experiencing mental health issues, whilst also observing that the range of fines varies across jurisdictions. The Society observed the over-arching principle that disciplinary powers are to protect the public and recognises that the power to fine must be capable of achieving a sufficient deterrent effect.
The Society has also observed that guidance may be taken from the range of issues raised in complaints – some of which may not warrant the severity of fines implied by these new provisions. In this regard, the Society has promoted the consideration of relevant ‘sentencing’ factors, the seriousness of conduct in any enforcement decision by either the LPCC or the Tribunal, and the overarching principle of disciplinary powers to protect the public.
The Society is pleased to see that the Bill as introduced has ensured the maximum tribunal fine is limited to $100,000, which is consistent with the maximum tribunal fine under the Legal Uniform Law.
The Society has otherwise observed that the fines that may be imposed under section 77J include both circumstances where the LPCC can impose a fine without the consent of the practitioner (in the case of unsatisfactory professional conduct) or with consent (in the case of professional misconduct).
Given the policy intent to expedite processes, it is observed that the proposed increases under proposed section 77J (and particularly s 77J(2)(f)) may have the potential to protract matters, should a practitioner seek review or not consent.
Marissa Mackie
President
Law Society of South Australia