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Review of the Legal Profession Act Final Report

Barriers to admission and entry to practice



Under the current regulatory scheme, practising barristers and solicitors must first be admitted by the Supreme Court, on the recommendation of the Legal Practitioners’ Admission Board. Once admitted, legal practitioners are subject to a rigorous disciplinary system.

Arguments for maintaining a statutory licensing scheme contend that there are distinctive duties required of the legal profession that are best enforced through the supervision of the Courts. It is also argued that the current supervisory role of the Courts and the Legal Practitioners’ Admission Board should be maintained because of:

  • the special ethical and professional rules incumbent upon legal professionals as officers of the court;
  • the necessity for special technical skills in court; and
  • the responsibilities of legal professionals who are responsible for holding funds on behalf of clients.

Arguments against maintaining the current licensing scheme include:
  • licensing may unnecessarily exclude non-lawyer services providers who have special expertise in some areas of the legal services market;
  • the disciplinary system deals largely with disputes about services or costs, rather than disciplinary matters, and that clients of lawyers should not be required to fund such a system. There are more appropriate ways to resolve such disputes;
  • regulation could be limited to certain categories of legal work in circumstances where consumer protection seems necessary, such as when legal practitioners are responsible for holding clients’ funds;
  • compliance costs; and
  • alternative models of non-government professional regulation exist, notably the Professional Standards Council, established under the Professional Standards Act of 1994.

National Licensing Scheme

Currently, inter-state practitioners in NSW are subject to one of two recognition schemes; the national practising certificates scheme or the Mutual Recognition Scheme. There are potential problems with both of these schemes.

The Standing Committee of Attorneys General agreed in principle to the implementation of the national practising certificate scheme, based on reciprocity rather than unilateral recognition. This approach was intended to ensure that as far as possible, the scheme remained uniform, and to provide an incentive for all jurisdictions to provide the same rights of entry and practice to all Australian practitioners.

Part 3B of the Legal Profession Act gives effect to the national practising certificates scheme in New South Wales. Inter-state practitioners in NSW are governed by the national practising certificates scheme if the state in which the practitioner was admitted has corresponding legislation. However, practitioners from jurisdictions which elect not to participate in the scheme continue to face barriers to entry in NSW. Practitioners not governed by the national practising certificate scheme are governed by the Mutual Recognition Scheme which requires the legal practitioner to pay significant costs to be admitted in NSW.

There are a number of ways that the national practising certificates scheme could be expanded to allow all inter-state legal practitioners to practice in NSW under the scheme. These include:
  • removal of the requirement for a corresponding law to be enacted in the practitioner’s home jurisdiction. Of course, this would place New South Wales practitioners at a potential disadvantage compared with their interstate colleagues.
  • implementation of a national licensing scheme, administered by a single authority Such a scheme would require Governments to either agree on a co-operative scheme or refer their powers to the Commonwealth Government. A national scheme would have far reaching implications for the profession which has traditionally been largely self regulated by the Law Society and Bar Association and their counterparts in each jurisdiction. Consideration would need to be given to the role of professional Councils under a national scheme, and whether they would be replaced by national bodies representing lawyers and issuing practising certificates. A national disciplinary system, applying common standards, would need to be developed.

A national scheme would facilitate the development of a uniform national market for legal services, but could also become remote from the needs of both practitioners and consumers, reducing their ability to have input into the development of ethical and professional standards.

Practical Training

Practical legal training before admission represents a significant expense for students which is ultimately passed on to consumers of legal services. The diversity of legal practice calls into question the need for all practitioners to complete practical training in all areas relevant to private practice. In addition, formal practical training might not be essential for practitioners who plan to work in large firms, in corporations, or in Government, because of the supervision and professional development which such organisations can offer. A possible alternative to formal practical legal training could be the introduction of a system of articles of clerkship for graduates employed by such organisations.

Limited exemptions to the requirement to complete practical training exist for Government employees. However, there appears to be little reason for the exemption for Government employees, but not to other employees. Similar skills and experience can be obtained in the private sector and other Government employment.


Respondents supported restrictions on entry to the legal services market, and the licensing system supervised by Government, as they believed that they assist consumer protection. The ACCC, NCOSS and PIAC stated that licensing assists in overcoming the information asymmetry between legal practitioners and consumers. The Bar Association stated that the effectiveness of the court system depends on the competence and character of legal practitioners. The issue of practising certificates by the Law Society and the Bar Association ensured the close supervision of the education and discipline of lawyers and provided an integral source of support for the supervision of the Court. The scheme also protected vulnerable clients from exploitation. Mr Justice Windeyer stated that proper controls were required for the legal profession in order to ensure that the public interest was served, rather than the interests of individual clients.

The Law Society stated that licensing avoided market failure and facilitated the development of an efficient market by providing consumers with basic information.

The suggestion raised in the paper that the current scheme for uniform licensing be replaced or supplemented by activity based licensing drew diverse responses. The ACCC indicated that there might be a public benefit in adopting a more flexible approach to the licensing of professionals providing legal services. The ACCC was of the view that while licensing of legal practitioners might be warranted, this did not mean that all legal services had to be licensed in the same way. The ACCC noted that many legal services may be discrete and relatively simple, such as uncontested divorce and administrative and welfare advocacy. The ACCC suggested that a scheme of voluntary certification and mandatory licensing for some areas of work, similar to that which applies to accountants, should be considered for legal practitioners.

However, this proposal was rejected by the Law Society, the Bar Association and NCOSS. The Bar Association’s position was that such a scheme was incompatible with the role of legal practitioners as officers of the Court, and would impede the maintenance of ethical and professional standards. The Law Society argued that such schemes would bring about overlap, gaps in expertise and duplication of resources. The Law Society also identified insurance and fidelity cover as problematic and was of the view that any organisation administering a selective licensing scheme would probably conclude that most or all of the elements required for legal training were necessary in any case.

It is noted that at present there does not appear to be demand from either consumers or rival professional groups for the implementation of new schemes to facilitate the entry of non-lawyers into the legal services market. In particular, activity based licensing could affect the access of consumers to complaint resolution and disciplinary bodies and the ability of those bodies to supervise individuals performing legal work.

Nevertheless, the scheme for conveyancers set out in the Conveyancers Licensing Act 1992 has now been operating for several year. It is suggested that the possibility of activity based schemes applying to non-lawyers should be considered further as the market develops.

There was general agreement that a disciplinary scheme should be maintained in the public interest.

National scheme for licensing

This issue was addressed by the Law Society and the Bar Association. Both organisations supported a national licensing scheme. The Bar Association suggested that it might support the abandonment of reciprocity as a condition of the national practising certificates scheme, in order to encourage the participation of all jurisdictions. However, the Law Society was of the view that reciprocity was an integral feature of the scheme and necessary to ensure uniformity in insurance and fidelity fund cover and that local practitioners competed on an equal playing field.

The Law Society indicated its support for a single national scheme of regulation based on uniform State Acts. However, the Law Society indicated there are some issues of divergence between States which would need to be addressed. The Bar Association rejected the proposals for a single regulator, but indicated that all regulatory bodies should be encouraged to coordinate their activities as far as reasonably practicable. The ACCC stated that any proposals for uniform legislation would not necessarily remove anti-competitive practices and that therefore proposals would need to be examined for anti-competitive effect.

The ICA stated that practitioners should be able to practise automatically in other jurisdictions and that a single, national regulator should be considered further.

Academic training

There was general support for the existing requirements for academic and practical legal training. The Bar Association rejected the suggestion that restrictions be placed on the practice of legal practitioners who had not trained in certain areas and stated that this issue should be dealt with by encouraging practitioners to develop the necessary insight and skills to recognise and address limitations in expertise.

Practical training

The Law Society and the Bar Association agreed that all practitioners should be required to undertake the relevant practical training to practise as either a barrister or solicitor. The Law Society’s position was that any exemptions should be considered on a case by case basis and be given because of the practical experience demonstrated by individual applicants, rather than by category. The Bar Association was of the view that the character and competence of the applicant, not experience alone, should determine whether an exemption was made.

Mr Rob Zikmann stated that the current system is unfair to mature people who may have substantial experience in particular areas of law. He suggested that such graduates be immediately permitted to practise without restrictions in particular fields of law. However, the implementation of a new scheme of practising certificates based on these considerations would create difficulties for clients who would not necessary know of practice restrictions.


There appears to be general agreement that the current licensing scheme for solicitors and barristers serves the public interest by protecting the public from incompetent and unqualified persons. Many matters dealt with by lawyers cover more than one area of law and a general licence ensures that practitioners can recognise and deal with all types of work. Further, it would be difficult for consumers to be sure that a practitioner who could only act in certain areas of law was licensed to accept their instructions. On balance, it is recommended that the current general licensing scheme continue to apply to solicitors and barristers who have been admitted and hold practising certificates.

Although the licensing scheme for conveyancers has shown that it is possible to separate discrete areas of work and allow non-lawyers to perform them, provided that suitable training is provided, there does not appear to be demand at present for the creation of further schemes for activity based licensing. Examples of areas of work which may warrant further consideration are the conduct of probate work, simple family law matters and advocacy in tribunals which do not apply evidentiary rules. The advantages of opening these markets may include greater competition among service providers and lower costs for consumers.

The ethical and professional duties of solicitors and barristers set them apart as members of a profession from other participants in the market. However, compliance with ethical and professional obligations might be made a condition of the grant of a licence to perform select categories of legal work, or might be required as a condition of membership of voluntary associations representing occupational groups. Such conditions would enhance the confidence of the public in the competence and integrity of service providers.

As Governments have recognised, it is imperative that national practising certificates legislation be enacted to facilitate the development of a national legal services market. However, the inconsistencies between various State and Territory Acts, in areas such as business structures, insurance and fidelity cover, may affect the efficacy of the national practising certificates legislation. In addition, the requirement for reciprocity which is a condition of participation in the current scheme has delayed its implementation. Nevertheless, it is likely that significant revenue would be lost by regulatory bodies in jurisdictions which have enacted national practising certificates legislation if the requirement for reciprocity was abandoned. Further, the requirement for reciprocity may act as an incentive to other jurisdictions to enact the necessary amendments.

These issues would be overcome by the enactment of a uniform regulatory scheme, on a co-operative basis, administered by each jurisdiction. It is recommended that this issue be placed on the agenda of the Standing Committee of Attorneys General.

As noted above, there appears to be general acceptance of the current scheme which requires academic and practical legal training to be completed by most students before admission. However, it is noted that the LSC has stated that many complaints which are made to the office of the LSC appear to arise from poor communication between solicitors and barristers and their clients. It is suggested that training in client service skills, including communication and negotiation skills, might be included in training as a prerequisite to admission.

There does not appear to be significant dissatisfaction with practical legal training, or demand for a broader range of exemptions. The issues paper canvassed the possibility of employers offering in-house practical legal training as a substitute for practical legal training conducted by an external service provider. However, this option is not supported because it would favour certain graduates who were employed by those firms and place others at a relative disadvantage. Further, the provision of training at arm’s length from employers promotes public confidence in the integrity of the profession and the ethical training provided to students.


2.1 Does the public benefit of a uniform government licensing scheme of lawyers outweigh the compliance costs and restrictions on competition which are generated by such licensing?
      The regulation by Government of the provision of general licences to solicitors and barristers promotes the protection of consumers from incompetent service providers. The scheme for universal licensing of lawyers can be justified by the requirement for legal practitioners to adhere to common ethical and professional rules, the complexity of legal work and the need for clients to be assured of access to an independent complaints handling and disciplinary process.
      If general licences were replaced by restricted licences, it would be difficult for consumers to be satisfied that a practitioner who could only act in certain areas of law was qualified to accept their instructions.
      Nevertheless, the general licensing scheme should not confer an exclusive right to practise in all areas of law. This issue is discussed below.

2.2 Should the scheme for licensing of lawyers apply only to certain categories of work, as in the case of accountants? Which categories of work should be subject to licensing?
      There may be scope for the general licensing system to be maintained together with other schemes which would permit other service providers to accept some kinds of legal work. However, there appears to be no demand for such schemes at present.

2.3 Should the scheme for the licensing of lawyers be replaced by activity based schemes, which apply to all participants in the market for legal services, such as schemes to regulate professionals who hold funds on behalf of others, and professionals who represent clients in litigation and court advocacy?

2.4 Would activity based licensing compromise the professional and ethical standards adhered to by all practitioners?
      If a selective licensing scheme is to be supported, ethical and professional standards should be developed to apply to any participants in the legal services market, as part of any selective licensing scheme.

2.5 Could statutory licensing be replaced by a scheme based on voluntary compliance, established by professional bodies representing lawyers?
      A voluntary scheme would offer inadequate protection to consumers. The public benefit of a compulsory scheme outweighs any anti-competitive effects.

2.6 Is a disciplinary system which applies solely to lawyers warranted in the public interest?
      Yes. A comprehensive disciplinary system is a necessary adjunct of a licensing scheme which confers rights on solicitors and barristers which are not extended to other members of the community.

National practising certificates

2.7 Should Part 3B of the Act, which establishes a scheme for national practising certificates, be amended so as to provide for the automatic recognition of practitioners who are eligible to practise in other jurisdictions, or should the conferral of rights of practice be contingent on the passage of corresponding laws as at present?

      Further consideration should be given by Governments to the removal of the requirement for corresponding laws to be passed in each jurisdiction, as a prerequisite to permitting practitioners from other jurisdictions to enter State and Territory markets. The requirement for corresponding laws is likely to affect competition across State and Territory boundaries. However, this consideration should be weighed against the incentive for the enactment of national practising certificates legislation provided by the requirement for reciprocity.
2.8 Should a scheme for a single, national regulator of lawyers, receive further consideration? What would be the advantages of such a scheme?
      Consideration should be given to the enactment of a uniform scheme for the regulation of the legal profession and the matter should be placed on the agenda of the Standing Committee of Attorneys General. It is recommended that the scheme be administered on a co-operative basis by existing State and Territory based bodies. The removal of inconsistencies between State and Territory schemes would enhance competition and facilitate the development of a national market.

2.9 Academic training
      Are the subjects set as prerequisites to admission appropriate, having regard to the diverse nature of legal practice?
      There appears to be general agreement among those who made submissions to the review that the subjects provide appropriate academic training for solicitors and barristers. However, it is suggested that the academic training should be complemented by training in client service skills, negotiation skills and communication skills for graduates seeking admission.

2.10 Given that the current system of admission permits a legal practitioner to accept instructions in any area of law, should restrictions be placed on the types of matters undertaken by legal practitioners who have not completed formal study in certain areas of practice?
      No. There does not appear to be public concern about this issue.

2.11 Practical Training
      Should all categories of practitioners be required to complete the same level of practical training before admission?
      The requirement for all students to complete practical legal training promotes competition within the profession because it enables any practitioner to move between different employers and areas of practice, once admitted. However, appropriate exemptions should be available to students on the basis of experience, character and competence.

2.12 Should limited exemptions be available to practitioners proposing to work for Government, corporations, or firms which have their own training arrangements in place?
      Any exemptions should be given on a case by case basis. Practical legal training should be a prerequisite to admission for all other students.

2.13 Should the limited exemption from practical legal training which applies to some public sector employees be retained in the public interest?
      No. The experience obtained by employees in the public sector should be assessed on the same basis as that of other applicants for exemption from practical legal training.
2.14 Should exemptions be given on the basis of experience, rather than employer?
      In the light of the recommendations made above, exemptions should only be given on the basis of experience, character and competence.

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The information contained on this page is not legal advice. If you have a legal problem you should talk to a lawyer before making a decision about what to do. The information on this page is written for people resident in , or affected by, the laws of New South Wales, Australia only.
most recently updated 26 April 1999