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Where am I now? Lawlink > Lawyer Regulation in Australia > Background
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Background
Towards a uniform national profession
From self-regulation to co-regulation
Regulatory authorities and disciplinary authorities
A double-barrelled profession
International agreements
Some definitions
Towards a uniform national profession
Federal system
On 1 January 1901, Australia gained independence from British rule and became a federation of States and Territories. This federal system comprises a Commonwealth (or Federal) government and eight State and Territory governments:
- Australian Capital Territory
- New South Wales
- Northern Territory
- Queensland
- South Australia
- Tasmania
- Victoria
- Western Australia
Historically, then, each State and Territory has been and continues to be individually responsible for the regulation of legal practitioners in its jurisdiction. Consequently legislation, admission rules, professional standards, disciplinary procedures and so on vary from one jurisdiction to another.
National Model Provisions
In 1994 the Law Council of Australia (equivalent to the American Bar Association) initiated a National Practice Model Laws Project with the aim of introducing national consistency across jurisdictions. These ‘Model Provisions’ were published in their final form, as the National Legal Profession Model Bill, on 23 April 2004 and in July were endorsed by the States’ and Territories’ Attorney-Generals. This was a landmark achievement for the regulation of the profession.
The Model Provisions have been implemented in most States and Territories with the remaining Acts to be effective by the end of 2007. To find out how this is progressing, see News.
The adoption of Model Provisions by all States and Territories represents a move towards a uniform national profession and means that lawyers will be able to practise “seamlessly” anywhere in Australia. Nevertheless, regulation will remain the responsibility of the States and Territories.
From self-regulation to co-regulation
Historically the legal profession in Australia has been self-regulating. But since 1994 this has gradually changed: lawyers’ professional associations now form part of a co-regulatory framework that includes independent statutory authorities and the courts.
The statutory authorities administer the rules; they handle complaints, undertake investigations, resolve consumer disputes, and so on. The rules themselves are established by each jurisdiction’s legislature. The professional associations assist with disciplinary matters and are also responsible for admission procedures and the like. While statutory authorities and professional associations can and do issue reprimands and impose minor penalties, serious conduct matters are determined by the courts. The courts also hear appeals and can review professional associations’ decisions.
The balance in these co-regulatory frameworks between government authorities and professional associations varies from jurisdiction to jurisdiction and reflects local conditions. Nonetheless, there is a general tendency towards investing more regulatory power in independent statutory authorities.
Regulatory authorities and disciplinary authorities
The complaint-handling and disciplinary system in most jurisdictions is three-tiered.
The bodies that regulate the legal profession in each jurisdiction tend to divide between those with regulatory powers and those with disciplinary powers. The distinction is not clear cut: some regulatory authorities also have disciplinary powers; some disciplinary authorities also have regulatory powers. In general, however, it is useful to distinguish them as follows:
Regulatory authorities
Regulatory authorities include professional associations (i.e. law societies and bar associations) and statutory authorities (e.g. the NSW Office of the Legal Services Commissioner, and the Legal Ombudsman Victoria). Functions of regulatory authorities include admitting people to legal practice, issuing practising certificates, making practice rules, receiving complaints against lawyers, resolving consumer disputes and investigating conduct matters.
Disciplinary authorities
Disciplinary authorities are courts, tribunals and panels.
Court’s “inherent jurisdiction”
When a lawyer is admitted to practise, their name is entered on the Roll of Legal Practitioners of the Supreme Court in their State or Territory: they become an “officer of the Court”. As such, they are subject to the “inherent jurisdiction” of that Court. In other words, the Supreme Courts retain inherent jurisdiction over the regulation of lawyers in Australia. This means there is always a right of appeal to the Supreme Courts as well as the ability to bring actions at first instance in the Supreme Court in certain circumstances.
A double-barrelled profession
Solicitors and barristers
The vast majority of lawyers in Australia practise as “solicitors”. But some lawyers practise as “barristers”. Barristers are independent, sole practitioners who specialise in court work. Solicitors normally work in firms and offer more general legal services. In trials, the usual arrangement is that the solicitor organises the case and instructs the barrister, and the barrister makes the court appearances.
Barristers and solicitors alike can provide specialised legal advice and can participate in, or represent people in, mediations and arbitrations.
Professional associations
In each State and Territory the professional association for solicitors is a law society and for barristers a bar association. In New South Wales, for example, solicitors are represented by the Law Society of NSW and barristers by the NSW Bar Association. A law society usually has some regulatory responsibility for the solicitors in its jurisdiction; likewise, a bar association for its barristers. But in some jurisdictions – South Australia, the Northern Territory, and the Australian Capital Territory– the legal profession is “fused”. This means that one and the same professional association (the law society) has responsibility for solicitors and barristers.
Professional associations in Australia receive no government funding. They are financed by the interest that accrues on Trust Accounts and by contributions from practitioners.
International agreements
Since 1997 Australia has had a reciprocal arrangement with New Zealand – the Trans-Tasman Mutual Recognition Treaty – that allows lawyers from one country to practise in the other. For more information, refer to the Trans-Tasman Mutual Recognition Act 1997 (Cth).
Some definitions
Interstate lawyers
Every Australian lawyer has his or her “home” jurisdiction. This is the jurisdiction in which they were first enrolled and had their primary practising certificate issued. If a lawyer practises outside their home jurisdiction (ie. in another State or Territory), they are referred to in the legislation as an “interstate lawyer” and the other jurisdiction as the “host” jurisdiction. For example, a lawyer whose home jurisdiction is Queensland and who is currently practising in Western Australia will be considered an “interstate lawyer”.
Foreign lawyers
Lawyers from overseas may come to Australia to practise Australian law or they may come here to practise the law of their own country.
Those who wish to practise Australian law must be admitted to an Australian jurisdiction, in much the same way as a local lawyer, the only difference being that their overseas qualifications and experience have to be assessed for compatibility with local conditions and standards.
Lawyers from overseas who come to Australia but continue to practise the law of another country are referred to in the legislation as “foreign lawyers”. Foreign lawyers may register in an Australian jurisdiction but may not be admitted as an officer of the Court.
Whether admitted as a local practitioner or registered as a foreign lawyer, a lawyer from overseas is subject to all the local rules and regulations.
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