Australia International Trade in Legal Services

Australia International Trade in Legal Services

HOME COUNTRY LICENSING QUESTIONS

Is there legislation governing the legal sector Responsibility for the regulation of lawyers in Australia rests with the States and Territories. The Legal Profession Acts (adopted between 2004 and 2008 by all but one jurisdiction) were supposed to help harmonise standards and systems across Australia and lead to clear and efficient regulation of the profession. However, by the end of 2008 it became apparent that further work was required in this regard and in 2009 the National Legal Profession Reform Taskforce was appointed to make recommendations and prepare draft national legislation by April 2010 with a view to achieving the uniform regulation the legal profession across Australia. The draft has been approved and Victoria has agreed to introduce legislation to implement the reforms that will be replicated across the participating jurisdictions. Queensland, South Australia, Western Australian, Tasmania and the Australian Capital Territory have indicated they will not be joining the National Scheme at the start. Draft legislation is currently being reviewed in consultation with the Law Council of Australia. It is anticipated that the legislation will come into effect from July 2014.
Under what title do lawyers practise?

Barrister, Solicitor, Legal Practitioner, lawyer.

How does an individual lawyer obtain a "licence" to practise law? How often must this be renewed?

 

In Australia, prospective lawyers must complete a law degree (Bachelor of Laws (most common), Juris Doctor, or less commonly the Diploma in Law through the Legal Practitioners Admissions Board and complete the practical training requirement which is met by completing an approved practical legal training (PLT) course or articles of clerkship. There is a two-step process for admission to practice. Graduates must first obtain admission as a lawyer in an Australian state/territory, which requires both possession of a recognized law degree and verification of good character, plus evidence of completion of a post-graduate PLT course. In the second stage, lawyers then apply to the applicable state organization for practising certificates either as a solicitor (which requires nothing further beyond the application) or as a barrister (which requires a passing score in the relevant state bar exam). In most States and Territories the professions are fused.
Where the distinction persists (e.g. New South Wales), a solicitor who wishes to appear in court must also qualify as a barrister.
Initial admission is usually on a restricted basis, requiring supervision by a senior practitioner for up to 24 months.
A person holding a practising certificate in any Australian jurisdiction is entitled to seek admission to practise in any other Australian jurisdiction without impediment; or may practise from time to time in another Australian jurisdiction without gaining admission in that jurisdiction.
Practising certificates must be renewed annually and each practitioner must comply with the continuous education requirements which are mandatory in each State and Territory.

Does this entitle the holder to practise throughout the country? If the law license only permits one to practice on a sub-national level, please explain the jurisdictional limits

After gaining admission and obtaining a practising certificate, lawyers admitted to practice in one State or Territory can be admitted and obtain a practising certificate in another State or Territory under the mutual recognition scheme. However, under the national practising certificate scheme, this is usually not now necessary.  The national practising certificate scheme provides that lawyers entitled to practise in one State or Territory can practise in another without having to obtain a practising certificate in the latter jurisdiction. It negates the need to incur costs associated with registration in the latter jurisdiction under the mutual recognition scheme. The national practising certificate scheme operates in every State and Territory. 

Are there certain activities that are "reserved" to those who are licensed to practise law in the jurisdiction?

After gaining admission and obtaining a practising certificate, lawyers admitted to practice in one State or Territory are entitled to seek admission and obtain a practising certificate in another State or Territory under the Mutual Recognition Scheme. However, under the National Practising Certificate Scheme, this is usually not now necessary. The National Practising Certificate Scheme provides that lawyers entitled to practise in one State or Territory can practise in another without having to obtain a practising certificate in the latter jurisdiction. It negates the need to incur costs associated with registration in the latter jurisdiction under the Mutual Recognition Scheme. The National Practising Certificate Scheme operates in every State and Territory.

Do you need to hold local nationality to be eligible to practise law?

No

What legal forms can lawyers work in? (e.g. self employment, partnership, limited liability partnership, multi-disciplinary partnership, incorporation)

See information for each state

What other ethical or regulatory requirements must a licensed lawyer comply with? 

 

See information for each state

Do law firms need to receive a "license" (or permission/approval) to practice law?

See information for each state

Which authority issues licences? Are there different authorities for individuals and firms? 

See information for each state
   

INDIVIDUAL FOREIGN LAWYERS

Are there any explicit rules or restrictions other than visas on fly in fly out practice of law? Ie. Do you need to obtain a licence for temporary practice?

 

 

 

 

 

 

 Under Legal Profession Acts enacted in all Australian states and territories (except South Australia), there is a general prohibition on the practice of foreign law in Australia unless the practitioner is an ‘Australian-registered foreign lawyer’ or is an ‘Australian legal practitioner.’
An overseas-qualified foreign lawyer will be exempt from the general prohibition on practising foreign law in Australia if the lawyer: practises foreign law in Australia for one or more periods that do not in aggregate exceed 90 days in any period of 12 months; and does not maintain a legal office for the purpose of practising foreign law or does not become a partner or director of a law practice in Australia.


Foreign lawyers are permitted to: practice ‘home country’ law; practice international law; provide legal services (including appearances) in relation to arbitration proceedings of a kind prescribed by legislation; to provide legal services (including appearances) in relation to proceedings before a body (other than a court) in which the body is not required to apply the rules of evidence and in which knowledge of the foreign law of a country where the foreign lawyer is registered is essential; and to provide legal services for conciliation, mediation and other forms of consensual dispute resolution of a kind prescribed by regulation 

Can a foreign lawyer obtain a visa to visit clients or to market but not to practice?

Yes. See: http://www.immi.gov.au/visawizard/

Can a foreign lawyer obtain a licence to establish and practise as a foreign legal consultant and what is the scope of this limited licence?

Yes. In all jurisdictions except South Australia. See further information for each state.

Are there any conditions that must be fulfilled once a foreign lawyer has been granted a limited licence (e.g. residency requirement)

Yes. In all jurisdictions except South Australia. See further information for each state.

Are there any conditions that must be fulfilled for a foreign lawyer to qualify for a limited licence? (e.g. prior practice)

Yes. In all jurisdictions except South Australia. See further information for each state.

 

 

Are foreign lawyers permitted to undertake arbitration and mediation? Yes
Are foreign lawyers allowed to appear in court under any circumstances? Legislation prohibits an Australian-registered foreign lawyer from appearing in any court except on his or her own behalf or in limited circumstances as prescribed by legislation.
Can foreign lawyers requalify as local lawyers? Yes. The Law Admissions Consultative Commission (LACC) is responsible for setting standards for academic and Practical Legal Training requirements for admission to the Australian legal profession, the accreditation and appraisal of academic and Practical Legal Training institutions and courses, and other matters related to admission to the Australian legal profession. LACC is a committee of the Australian Conference of Chief Justices. Uniform principles for the assessment of overseas applicants for admission have been adopted by all Australian admitting authorities. 

FOREIGN LAW FIRMS

Can a foreign law firm obtain a licence to open an office?

See information for each state

Even if a foreign law firm does not require a legal licence must they register in some form in order to set up an office? (e.g. with a ministry of company affairs etc)

All foreign businesses must do the following, in order to set up an office: register with Australian Securities and Investments Commission (ASIC) as a foreign company; register the trading name of the company with the relevant State Government office; obtain an Australian Business Number from the Australian Business Register; and have a principal place of business in Australia.

Are there different types of foreign law firm 'licence'  (e.g. Joint Law Venture, stand alone foreign licence etc) No
Is there a quota on the number of licences available? No
Are there geographical restrictions on foreign firm licences or on the number of branches a foreign firm can have? No
Are there "scope of practice" rules that apply directly to foreign law firms (as opposed to lawyers themselves)? (e.g. home, host, international law), if so, what are they?

Foreign firms may offer advisory services in foreign and international law.

 

Are there restrictions on the corporate form a foreign law firm can take? See information for each state.
Are there rules about the name a foreign law firm can take? See information for each state.
What entity grants a 'license' to a foreign law firm? If that entity is on the Internet, please provide the URL See information for each state.
   

EMPLOYMENT AND PARTNERSHIP

Are there restrictions on the ownership share of foreign lawyers in a law firm? There are no limits on ownership or control by foreign nationals, but the acquisition of substantial interests by foreigners must be notified. Notification thresholds are AUD 5 million in an existing business and AUD 10 million for establishment of a new business.
Ownership of law firms by non-lawyers, including corporations and stock market shareholders, is permitted under strict regulation.
May a domestic lawyer be employed by a foreign lawyer or law firm? Local lawyers can be employed by foreign law firms or foreign lawyers in all Australian jurisdictions. An Australian-registered foreign lawyer is permitted to employ one or more Australian legal practitioners but such employment does not allow the foreign lawyer to practise Australian law in Australia. In addition, the
Australian legal practitioners so employed (unless employed in a law firm with an Australian registered foreign lawyer as a partner with at least one other partner who is an Australian legal Practitioner Director) must not provide advice on Australian law to, or for use by, the Australian registered foreign lawyer, or practise Australian law in Australia in the course of that employment.
Can a domestic lawyer enter into partnership with a foreign lawyer? Yes
Can a domestic lawyer or domestic law firm employ a foreign lawyer? Yes
   

OTHER USEFUL LINKS/SOURCES

Other useful sources or comments or links

Law Council of Australia: http://www.lawcouncil.asn.au/
AustLii: http://www.austlii.edu.au/
ComLaw: http://www.comlaw.gov.au/

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Law Council of Australia   www.lawcouncil.asn.au