Guidance for English and Welsh lawyers on the practice of foreign law in Australia and admission as an Australian legal practitioner

Transcription

1 Guidance for English and Welsh lawyers on the practice of foreign law in Australia and admission as an Australian legal practitioner October 2015

2 Table of contents Introduction to Australia....3 The Australian legal profession....4 Regulation of the Australian legal profession....5 The Australian regulatory landscape (as at October 2015) Admission to practise Australian law....7 Becoming an Australian lawyer....7 Foreign lawyers requalifying as Australian lawyers....7 Detailed summary of requirements to requalify as an Australian lawyer....8 Becoming an Australian legal practitioner....9 Australian admitting and practice certificate issuing authorities Practice of foreign law in Australia Australia s approach to the practice of foreign law Practice on a fly-in, fly-out basis...12 Practice as a registered foreign lawyer...12 About the Law Council of Australia Other useful contacts

3 Introduction to Australia Australia is ranked by the World Bank as the 10th easiest country in the world to do business; a new business can be set up in Australia within two days. The regulation of the legal services sector is based on the uncompromisingly reformist and progressive objective of facilitating the internationalisation of legal services in Australia, by providing a hospitable framework for the practice of foreign law by foreign lawyers as a recognised aspect of legal practice in Australia. As a consequence, the OECD Services Trade Restrictiveness Index shows that Australia is one of the world s least restrictive markets for the practice of foreign law. This measure is based on a review of legislation in Australia s largest state jurisdiction, New South Wales. As of 1 July 2015, reforms to the regulation of the legal profession have further decreased the regulatory barriers to the practice of foreign law in Australia. Identical laws also apply in Victoria, covering more than 70 per cent of the Australian legal profession. In addition to Australia s open business environment and stable economy, Australia benefits from its location in the Asia-Pacific region. This region is home to many of the world s fastest growing economies. Australia has extensive diplomatic, trade, business and cultural links into the Asia-Pacific region and Australian law firms have developed extensive networks within the region. Australia s economy has remained stable through the global financial crisis, bolstering foreign investment and trade. In 2014, the total value of Australia s trade in goods and services was AUD664 billion. Since 2009, Australia s total trade values have increased by an average of 5.3 per cent per annum while volumes increased 5.1 per cent per annum. In 2014, Australia s two largest trading partners in terms of overall volume of trade were China and Japan and exports to ASEAN members rose 17.8 per cent. 3

4 The Australian legal profession Australia has maintained a stable liberal democratic political system that functions as a federal parliamentary democracy and constitutional monarchy comprising six states, three federal territories and seven external territories. The common law tradition which applies in Australia expects and values judicial independence. Decisions of the courts conform to due process and are made in the context of prevailing law. Contractual arrangements are therefore protected by the rule of law and the independence of the judiciary. Domestic companies, foreign companies and individuals have the same standing before the law. 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. In some states, the distinction between barristers and solicitors is nominal and reflects individual preferences and membership of professional associations. In others, at least in a practical sense, the distinction is clear from the type of practice practitioners have, even if they are entitled to practise in the other branch of the profession. Therefore, while members of the bar practise only as barristers, a practitioner is admitted as a barrister and solicitor. Thus, every solicitor is also a barrister, although many prefer to brief counsel rather than appear in courts or tribunals themselves. Generally-speaking, the trend to a fused profession is similar to that in England and Wales. However, the states of New South Wales and Queensland maintain strongly independent bars, call to which requires extra training. In those states, solicitors rights of audience before superior courts are theoretically unlimited, but infrequently exercised in practice. Victoria also has an independent bar but solicitors have full right of audience before all courts. 4

5 Regulation of the Australian legal profession Responsibility for the regulation of lawyers rests with Australia s state and territory governments. As a consequence, the development of regulation of the legal profession has been shaped by the varied histories of legal, economic and social life in each jurisdiction. Regulation of the legal profession in Australia is based upon a co-regulatory model under which, broadly: the supreme courts, through their inherent powers, regulate admission to the legal profession and the discipline of Australian lawyers each state and territory enacts legislation regulating Australian legal practitioners, foreign lawyers and the provision of legal services within their jurisdiction legal professional bodies (law societies and Bar associations) develop rules of professional conduct, legal practice and continuing professional development independent regulatory authorities and/or legal professional bodies exercise day-to-day regulatory powers and functions (the precise allocation of regulatory powers and functions varies across states and territories) The Commonwealth of Australia also has limited power to regulate the legal profession where such regulation is incidental to the exercise of a full legislative power of the Commonwealth. For example, if the federal parliament enacts legislation involving taxation, it may also enact legislation to regulate legal practitioners who provide legal services consisting of tax law advice. However, in these circumstances the Commonwealth will usually seek to reach an agreement for complementary laws to be passed by the states and territories. This enables the regulation of the legal profession to remain exclusively at state and territory level. For many years the states and territories (together with the Commonwealth) have been steadily working toward a regulatory system for the legal profession based upon uniform legislation and regulatory standards in each state and territory, in furtherance of the concept of a national legal profession operating in a national legal services market. In 2009, the Council of Australian Governments appointed the National Legal Profession Reform Taskforce to make recommendations and propose draft legislation the aim of creating a system of regulation to fully implement a truly national legal profession. This initiative resulted in the Legal Profession Uniform Law. The objectives of the Legal Profession Uniform Law are to promote the administration of justice and an efficient and effective Australian legal profession by: providing and promoting inter-jurisdictional consistency in the law applying to the Australian legal profession ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services enhancing the protection of clients of law practices and the protection of the public generally 5

6 empowering clients of law practices to make informed choices about the services they access and the costs involved promoting regulation of the legal profession that is efficient, effective, targeted and proportionate, and providing a co-regulatory framework within which an appropriate level of independence of the legal profession from the executive arm of government is maintained. ¹ The Australian regulatory landscape (as at October 2015) In Queensland, the Australian Capital Territory, the Northern Territory, Western Australia and Tasmania, legal profession acts, based on a model law developed between , provide for uniformity in many areas of regulation, including the adoption of consistent standards in some areas of regulation and local arrangements in other areas of regulation. In South Australia, the Legal Practitioners Act 1981 has adopted some, but not all, aspects of the model law and Legal Profession Acts of other jurisdictions. As of 1 July 2015, New South Wales and Victoria have established a common legal services market covering over 70 per cent of Australia s legal profession by implementing a uniform legislative scheme known as the Legal Profession Uniform Law. The Uniform Law creates the possibility of achieving uniform regulation of the legal profession throughout Australia and is structured so that other states and territories can join the Uniform Law scheme. ¹ See Legal Services Council, Uniform Law Objectives (18 August 2015), < 6

7 Admission to practise Australian law Admission to practise Australian law requires being admitted to the Australian legal profession (an Australian lawyer) and then granted a practising certificate (an Australian legal practitioner). Becoming an Australian lawyer Admission to the Australian legal profession is an exercise of the inherent jurisdiction of each of the state and territory supreme courts. Legal profession legislation in each state and territory provides for mutual recognition of admission. This means that admission to legal profession granted by the supreme court of one Australian jurisdiction is recognised by the supreme court of every other jurisdiction without any further requirements. Legal profession legislation in each jurisdiction also provides for the establishment and operation of admitting authorities to assist the supreme court exercise its inherent jurisdiction over admission. The role of admitting authorities is to assess applications for admission and provide recommendations to the supreme court as to whether the applicant is both eligible and suitable for admission. The typical pathway to admission to the Australian legal profession is based on an applicant satisfying three prerequisites. 1. Successful completion of an accredited course of academic study at an accredited tertiary institution involving the equivalent of at least three years full-time study of law, including successful completion of 11 compulsory areas of legal knowledge. 2. Successful completion of an accredited or approved program of practical legal education at an accredited institution, or an approved provider, or under an approved training program. 3. Demonstrating that the applicant is a fit and proper person to be admitted to the legal profession. Foreign lawyers requalifying as Australian lawyers Admission is also available to applicants who have not satisfied these requirements, including applicants with academic qualifications and practical legal training acquired in another country. Such admission is based on an assessment of whether the applicant s academic qualifications (including especially the 11 compulsory areas of legal knowledge required of all Australian qualified applicants) and practical legal training (including consideration of the applicant s actual experience in legal practice) are substantially equivalent to Australia s admission requirements. Applicant s who have studied overseas may be directed to complete further academic studies in order to be eligible for admission, but otherwise exempted from the requirement of having completed studies and training that meet Australia s admission requirements. 7

8 New South Wales, Victoria, Western Australia and Tasmania also provide for conditional admission to the legal profession i.e. an applicant may be granted admission subject to one or more of the following kinds of conditions: completing additional academic studies completing additional practical legal training practising for a limited period of time practising only in specified areas of Australian law practising only under appropriate supervision practising under other conditions as determined by the supreme court Detailed summary of requirements to requalify as an Australian lawyer The Law Admissions Consultative Committee has developed uniform principles for assessing the qualifications of overseas applicants for admission to the Australian legal profession. These are available from Principles and guidelines relating to conditional admission are also in development. To be admitted to the legal profession in an Australian jurisdiction on the basis of qualifications obtained outside Australia, an applicant must usually have: a. completed a tertiary course leading to legal practice in the applicant s home jurisdiction, which is substantially equivalent to a three year full-time law course that leads to admission to the legal profession in Australia b. successfully completed subjects, either as part of that course or otherwise, which are substantially equivalent to the areas of study which Australian applicants must successfully complete before being admitted to the legal profession in Australia c. acquired and demonstrated an appropriate understanding of, and competence in, certain skills, practice areas and values, which are substantially equivalent to the skills, practice areas and values which Australian applicants must acquire and demonstrate an understanding of and competence in, before being admitted to the legal profession in Australia d. undertaken, or been exempted from, the International English Language Testing System Academic Module (IELTS) test within two years before seeking admission, and obtained minimum scores of 8.0 for writing, 7.5 for speaking and 7.0 for reading and listening, in the components of that test An admitting authority may dispense with one or more of the requirements referred to in items (b) and (c) in the case of an experienced practitioner from an overseas jurisdiction if it considers that the applicant s experience is sufficiently relevant, substantial and current to justify a dispensation. 8

9 Except for a lawyer trained and admitted in New Zealand, every lawyer trained outside Australia who wishes to become eligible for admission in Australia must first apply to an admitting authority for an assessment of whether the person s academic and practical legal training qualifications are substantially equivalent to the qualifications required of local applicants.² That assessment will set out what additional studies the applicant must undertake in Australia, and the period within which the applicant must complete those studies and apply for admission. These uniform principles show how Australian admitting authorities approach the task of assessing an applicant s compliance with each of these requirements. Once an overseas applicant has been admitted to the legal profession, the applicant must obtain a practising certificate before commencing to practise law commencing to practise law. Specific questions should be directed to the admitting authority in the state or territory in which you would most like to seek admission to practise. Becoming an Australian legal practitioner Admission to the Australian legal profession does not confer an automatic entitlement to engage in legal practice. Following admission an Australian lawyer intending to engage in legal practice must (unless there is an exemption for the particular form of legal practice) obtain a practising certificate from the regulatory body or authority responsible for practising certificates in the state or territory in which the Australian lawyer intends to principally engage in legal practice. In general terms, during the first 18 months or two years of post-admission legal practice Australian legal practitioners practising as a solicitor will have a condition imposed on their practising certificate that they may only engage in legal practice under supervision. Also, newly admitted Australian lawyers who choose to engage in legal practise as a barrister will have a condition imposed on their practising certificate they must undertake a Bar-reading or similar program. Australian practising certificates are renewed annually and are (unless exempted) subject to statutory conditions about maintaining professional indemnity insurance and undertaking continuing professional development. In addition, other statutory and discretionary conditions may be imposed on a practising certificate. As with admission to the Australian legal profession, legal profession legislation in each state and territory provides for mutual recognition of practising entitlements i.e. an Australian legal practitioner granted a practising certificate in one Australian jurisdiction will be entitled to engage in legal practice in any other Australian jurisdiction without having to apply for an additional practising certificate. ² A lawyer trained and admitted to the legal profession in New Zealand may apply to have those qualifications recognised under the Trans-Tasman Mutual Recognition Act 1997 (Cth). 9

10 Australian admitting and practice certificate issuing authorities State or territory Admitting authority Practice certificate issuing authorities Australian Capital Territory Legal Practitioners Admission Board ACT Law Society ACT Bar Association New South Wales Legal Profession Admission Board The Law Society of New South Wales: New South Wales Bar Association: Northern Territory The Legal Practitioners Admission Board The Law Society Northern Territory Queensland Legal Practitioners Admissions Board The Queensland Law Society Bar Association of Queensland South Australia Board of Examiners The Law Society of South Australia Tasmania Board of Legal Education Law Society of Tasmania Victoria Board of Examiners The Legal Services Board of Victoria Western Australia Legal Practice Board of Western Australia The Legal Services Board of Western Australia 10

11 Practice of foreign law in Australia Australia s approach to the practice of foreign law Australia s arrangements for foreign lawyers encourage and facilitate the internationalisation of legal services and the legal services sector by recognising the practice of foreign law by foreign lawyers as an important and formally recognised aspect of legal practice in Australia. Foreign lawyers are permitted to appear in proceedings before bodies other than courts, where the rules of evidence do not apply and in which knowledge of the foreign law is essential to the proceedings. Foreign lawyers may also provide legal services in relation to arbitration, conciliation, mediation and other forms of alternative dispute resolution. However, a foreign lawyer is not permitted to appear in an Australian court, other than on his or her own behalf. Despite some variance in regulation of the legal profession between jurisdictions, the following essential features of the regulation of the practice of foreign law in Australia apply in all jurisdictions. Objective of regulations To encourage and facilitate the internationalisation of legal services by providing a framework for the regulation of the practice of foreign law by foreign lawyers as a recognised aspect of legal practice in Australia. Practice without registration Foreign lawyers are entitled to practise foreign law on a fly-in, fly-out basis without registration in Australia for up to 90 days in any 12 month period. Practice as an Australian-registered foreign lawyer The right to practise as an Australian-registered foreign lawyer is available on the basis of the foreign lawyer s right to practise law in one or more foreign jurisdictions and is facilitated by a simple and transparent registration process. Form of practice Foreign lawyers may choose any form of practice that is available to the Australian legal profession, including: on a fly-in, fly-out basis by establishing an office as a sole practitioner as an employee of either a law practice or an Australian-registered foreign lawyer in commercial association with other foreign lawyers and/or local lawyers 11

12 Scope of practice Foreign lawyers are not entitled to practise local law; however foreign lawyers are entitled to provide: legal services in relation to the law of a foreign country(s) where the lawyer is authorised to practise legal services in relation to arbitration, mediation or other forms of consensual dispute resolution together with a local lawyer, joint legal services covering both foreign and local law Practice on a fly-in, fly-out basis There are no formal barriers on foreign lawyers providing legal services in relation to foreign law on a fly-in, fly-out basis. Foreign lawyers working on a fly-in, fly-out basis, are entitled to come to Australia and act for their clients and provide legal services (for example in commercial negotiations, on transnational contracts, or international arbitrations), for a maximum period of 90 days in any 12 month period. There is no requirement to register with an Australian legal profession regulatory body, provided the foreign lawyer does not maintain a legal office in Australia or become a partner or director of a law practice in Australia. Eligibility for foreign lawyers to provide legal services in Australia is based on their right to provide legal services in their home and/or other foreign jurisdiction rather than on their nationality or residency status. That is, Australia enables foreign lawyers to practise foreign law in Australia to the extent that they are entitled to practise law in their home and/or other foreign jurisdiction. Practice as a registered foreign lawyer Foreign lawyers who wish to practise for more than 90 days in any 12 month period or establish a commercial presence (an office) may do so though a simple registration process that is purely based on their right to engage in legal practice in one or more foreign jurisdictions. Following registration with the local state or territory authority as an Australian-registered foreign lawyer, a foreign lawyer is permitted to practise the law of those foreign jurisdictions in which the lawyer is appropriately qualified and international law.³ An Australian-registered foreign lawyer may also work in commercial association with Australian lawyers. Legal profession legislation in each state and territory (except South Australia) provides for mutual recognition of an Australian-registered foreign lawyer s practising entitlements i.e. a foreign lawyer registered as an Australian-registered foreign lawyer by one jurisdiction will be entitled to engage in legal practice as a foreign lawyer in any other Australian jurisdiction 12

13 without having to apply for an additional registration. Australian-registered foreign lawyers are subject to the same professional, ethical and practice standards as apply to Australian legal practitioners. A registered foreign lawyer is not entitled to practise Australian law, but may employ Australian legal practitioners. Detailed information about the requirements for registration as a foreign lawyer should be directed to the admitting authority in the jurisdiction where you wish to practise. ³ See for example Legal Profession Act (NSW) 2004, Pt 2.7 Div 2, s

14 About the Law Council of Australia The Law Council of Australia exists to represent the legal profession at the national level, to speak on behalf of its constituent bodies on national issues, and to promote the administration of justice, access to justice and general improvement of the law. The Law Council advises governments, courts and federal agencies on ways in which the law and the justice system can be improved for the benefit of the community. The Law Council also represents the Australian legal profession overseas, and maintains close relationships with legal professional bodies throughout the world. The Law Council was established in 1933, and represents 16 Australian state and territory law societies and Bar associations and the Law Firms Australia, which are known collectively as the council s constituent bodies. They are: Australian Capital Territory Bar Association Australian Capital Territory Law Society Bar Association of Queensland Inc Law Institute of Victoria Law Society of New South Wales Law Society of South Australia Law Society of Tasmania Law Society Northern Territory Law Society of Western Australia New South Wales Bar Association Northern Territory Bar Association Queensland Law Society South Australian Bar Association Tasmanian Bar Law Firms Australia The Victorian Bar Inc Western Australian Bar Association Through this representation, the Law Council effectively acts on behalf of more than 60,000 lawyers across Australia. The Law Council is governed by a board of 23 directors one from each of the constituent bodies and six elected executive members. The directors meet quarterly to set objectives, policy and priorities for the Law Council. Between the meetings of directors, policies and governance responsibility for the Law Council is exercised by the elected executive members, led by the president who normally serves a 12 month term. The Council s six executive members are nominated and elected by the board of directors. For more information visit the Law Council of Australia website: 14

15 Other useful contacts The Australian Trade Commission (Austrade) provides coordinated government assistance to promote, attract and facilitate productive foreign direct investment into Australia. Further information is available from: The International department of the Law Society of England and Wales provides practical support, training, information and advice to law firms and legal professionals working abroad, or exploring international opportunities. For more information visit or The Law Society of England and Wales International Group 15

16 113 Chancery Lane London WC2A 1PL Dx 56 Lon/Chancery Ln t: f: