Part 3C Foreign lawyers

Division 1 Preliminary

48ZE   Definitions

In this Act:

Australia includes the external Territories.

Australian law means law of the Commonwealth, a State or a Territory.

commercial legal presence means an interest in a law firm practising foreign law.

domestic lawyer means a person (including a foreign lawyer) who is a barrister or solicitor.

domestic registration authority means the Bar Council or the Law Society Council.

foreign law means law of a place outside Australia.

foreign lawyer means a person who is duly registered to practise law in a place outside Australia by a foreign registration authority.

foreign registration authority means the person or authority in a place outside Australia having the function conferred by law of registering persons to practise law in that place.

home registration authority of a foreign lawyer means a foreign registration authority stated in the lawyer’s application for registration under section 48ZI.

law firm means:

(a)  a person practising as a lawyer on the person’s own account, or

(b)  a partnership of two or more persons practising as lawyers, or

(c)  an incorporated legal practice or multidisciplinary partnership that is permitted by a law of the State.

locally registered foreign lawyer means a person who is registered as a foreign lawyer under this Part.

practise foreign law means doing work, or transacting business, in the State concerning foreign law, being work or business of a kind that, if it concerned the law of the State, would ordinarily be done or transacted by a domestic lawyer.

registered:

(a)  when used in connection with a place outside Australia, means having all necessary licences, approvals, admissions, certifications or other forms of authorisation (including practising certificates) required by or under legislation for the carrying on of the practice of law in that place, or

(b)  when used in connection with the exercise of a function by a domestic registration authority in relation to a domestic lawyer, means the issue of a practising certificate.

48ZF   Principal purpose

The principal purpose of this Part is to encourage and facilitate the internationalisation of legal services and the legal services sector by providing a framework for the regulation of the practice of foreign law in the State by foreign-registered lawyers as a recognised aspect of legal practice in the State.

48ZG   Operation of this Part

(1)  This Part applies to any individual (other than a domestic lawyer) who practises foreign law in the State.

(2)  Nothing in this Part requires a domestic lawyer (including a foreign lawyer who is also a domestic lawyer) to be registered as a foreign lawyer under this Part in order to practise foreign law in the State.

Division 2 Local registration of foreign lawyer

48ZH   Registration requirement

(1)  A person must not practise foreign law in the State unless the person:

(a)  is a locally registered foreign lawyer and practises foreign law in the State in accordance with this Part, or

(b)  is a foreign lawyer who practises foreign law in the State for a period of 12 months or less or is subject to a migration restriction and who:

(i)  does not maintain an office for the purpose of practising as a lawyer in the State, or

(ii)  does not have a commercial legal presence in the State, or

(c)  is a domestic lawyer, or is a person employed by a domestic lawyer to provide advice on foreign law to, and for use by, the domestic lawyer.

Maximum penalty: 20 penalty units.

(2)  In this section:

migration restriction means a restriction imposed on a person who is not an Australian citizen under the Migration Act 1958 of the Commonwealth that has the effect of limiting the period during which work may be done, or business transacted, in Australia by the person.

48ZI   Registration application

(1)  A foreign lawyer may lodge an application in writing with the domestic registration authority seeking registration as a foreign lawyer under this Part.

(2)  The application must:

(a)  state the applicant’s educational and professional qualifications, and

(b)  state that the applicant is registered to practise law by one or more specified foreign registration authorities (the home registration authorities) in a place or places outside Australia, and

(c)  state that the applicant is not the subject of any disciplinary proceedings in any place (including any preliminary investigations or action that might lead to disciplinary proceedings) in relation to that registration, and

(d)  state that the applicant is not a party in any pending criminal or civil proceedings in any place that is likely to result in disciplinary action being taken against the applicant, and

(e)  state that the applicant’s registration is not cancelled or currently suspended in any place as a result of any disciplinary action, and

(f)  state that the applicant is not otherwise personally prohibited from carrying on the practice of law in any place or bound by any undertaking not to carry out the practice of law in any place, and is not subject to any special conditions in carrying on any practice as a result of criminal, civil or disciplinary proceedings in any place, and

(g)  specify any special conditions imposed in any place as a restriction on the practice of law by the applicant or any undertaking given by the applicant restricting the applicant’s practise of law, and

(h)  give consent to the making of inquiries of, and the exchange of information with, such of the home registration authorities as the domestic registration authority considers appropriate regarding the applicant’s activities in practising law in the places concerned or otherwise regarding matters relevant to the application.

(3)  The application must (if the domestic registration authority so requires) be accompanied by an original instrument, or a copy of an original instrument, from each home registration authority specified in the application that:

(a)  verifies the applicant’s educational and professional qualifications, and

(b)  verifies the applicant’s registration by the authority to practise law in the place concerned, and the date of registration, and

(c)  describes anything done by the applicant in practising law in that place of which the authority is aware and that, in the opinion of the authority, has had or is likely to have had an adverse effect on the applicant’s professional standing within the legal profession of that place.

(4)  The applicant must (if the domestic registration authority so requires) certify in the application that the accompanying instrument is the original or a complete and accurate copy of the original.

(5)  The domestic registration authority may require the applicant to verify the statements in the application by statutory declaration or by other proof acceptable to the authority.

(6)  If the accompanying instrument is not in English it must be accompanied by a translation in English that is authenticated or certified to the satisfaction of the domestic registration authority.

48ZJ   Fee for registration

(1)  The application under section 48ZI is to be accompanied by such fee as the domestic registration authority may determine and as is approved by the Attorney General.

(2)  The fee is not to include any component for compulsory membership of any professional association.

48ZK   Entitlement to registration

(1)  The domestic registration authority must register a person who lodges an application in accordance with section 48ZI as a foreign lawyer if:

(a)  the domestic registration authority is satisfied that the person is registered to practise law in one or more places outside Australia, and

(b)  the domestic registration authority considers that an effective system exists in one or more of the places referred to in paragraph (a) for the regulation of the practice of law, and

(c)  the domestic registration authority considers that the person is not, as a result of criminal, civil or disciplinary proceedings, subject to any special conditions in carrying on the practice of law in any of the places referred to in paragraph (a) or any undertakings concerning the person’s practice of law in any of those places that would make it inappropriate to register the person, and

(d)  the person demonstrates an intention to practise foreign law in the State and to establish an office or a commercial legal presence in the State within a reasonable period after grant of registration for the purpose of so practising.

(2)  Residence or domicile in the State is not a prerequisite for, or a factor in determining entitlement to, registration as a foreign lawyer under this Part.

48ZL   Conditions

(1)  The domestic registration authority may at any time impose any condition on the registration of a foreign lawyer under this Part:

(a)  that it might impose by attaching a condition to the practising certificate of a domestic lawyer:

(i)  under Division 1 of Part 3 as a result of disciplinary action, or

(ii)  under section 33 (1), or

(b)  that relates to appearances by the foreign lawyer before courts,

      and may at any time by notice in writing revoke or vary such a condition.

(2)  The domestic registration authority may not impose a condition that is more onerous than a condition that it would attach to the practising certificate of a domestic lawyer in the same or similar circumstances.

48ZM   Notification of decision

(1)  The domestic registration authority must give a foreign lawyer who lodges an application in accordance with section 48ZI written notice of its decision to grant registration under this Part, to refuse registration, or to impose conditions on registration.

(2)  The domestic registration authority is taken to have refused registration if registration is not granted within the period prescribed by the regulations after an application is duly lodged in accordance with section 48ZI.

48ZN   Duration of registration and annual fee

(1)  When granted, registration under this Part takes effect as from the date on which the application under section 48ZI was lodged.

(2)  Registration remains in force, unless sooner cancelled, until the next 1 July after the day on which it takes effect.

(3)  A foreign lawyer who has been granted registration under this Part may, during the period prescribed by the regulations before the registration expires, apply to the domestic registration authority for renewal of the registration.

(4)  Subsection (3) does not prevent the domestic registration authority from accepting an application made after the period prescribed by the regulations and before the next 1 July.

(5)  Registration may be renewed by payment of an annual fee determined by the domestic registration authority and approved by the Attorney General.

(6)  An application for renewal of registration is to be accompanied by the annual fee.

(7)  The annual fee is not to include any component for compulsory membership of any professional association.

48ZO   Refusal of application to register or renew registration

(1)  The domestic registration authority must refuse to register, or renew the registration of, a foreign lawyer under this Part if the notice or approval for registration or renewal:

(a)  is not accompanied by the appropriate fee, or

(b)  is not accompanied by, or does not contain, the information required by this Part or prescribed by the regulations.

(2)  The domestic registration authority may refuse to renew the registration of a foreign lawyer under this Part if a finding that the lawyer has contravened section 48ZU has been made in respect of that lawyer and:

(a)  a fine imposed because of the finding has not been paid, or

(b)  costs awarded against the lawyer because of the finding have been assessed but have not been paid or, if an arrangement for their payment has been made, the lawyer is in default under the arrangement, or

(c)  any costs of an inspection or investigation payable under section 55 by the lawyer have not been paid, or

(d)  any expenses of receivership payable under section 110 by the lawyer have not been paid.

48ZP   Publication of information about locally registered foreign lawyers

The domestic registration authority may publish, in circumstances which it considers appropriate, the names of persons registered by it as foreign lawyers under this Part and any relevant particulars concerning those persons.

48ZQ   Cancellation of registration

(1)  The domestic registration authority may, by notice in writing to a locally registered foreign lawyer, cancel the lawyer’s registration under this Part if it is of the opinion that there is sufficient reason for doing so.

(2)  Without limiting the grounds for cancellation, registration may be cancelled if:

(a)  a home registration authority of the foreign lawyer cancels registration of the foreign lawyer as a result of criminal, civil or disciplinary proceedings, or

(b)  the foreign lawyer fails to comply with any requirements of this Part, or

(c)  the registration of the foreign lawyer by one or more of the lawyer’s home registration authorities has lapsed, or

(d)  the foreign lawyer has not established an office to practise foreign law or a commercial legal presence in the State within the period prescribed by the regulations after being granted registration, or

(e)  the foreign lawyer fails to comply with any condition imposed on the lawyer’s registration under this Part.

(3)  Registration is not to be cancelled on any of the above grounds unless the foreign lawyer is given reasonable opportunity to make written submissions to the domestic registration authority.

(4)  Registration is not to be cancelled on the ground that the foreign lawyer’s registration has lapsed as referred to in subsection (2) (c) if the lawyer demonstrates that the lapse did not result from any criminal, civil or disciplinary proceedings against the lawyer but from circumstances beyond the lawyer’s control.

(5)  Registration as a locally registered foreign lawyer under this Part is automatically cancelled if the lawyer concerned:

(a)  is registered as a domestic lawyer, or

(b)  requests the domestic registration authority to cancel the registration.

(6)  Cancellation of registration at the request of a foreign lawyer does not affect the exercise by the domestic registration authority of any power relating to disciplinary proceedings brought against the lawyer before the cancellation.

48ZR   Appeals

(1)  If the domestic registration authority:

(a)  refuses to register a foreign lawyer under this Part or to renew the registration of a locally registered foreign lawyer, or

Note. See sections 48ZK and 48ZO.

(b)  cancels the registration of a locally registered foreign lawyer under this Part, or

Note. See section 48ZQ.

(c)  takes any action under section 55 against a locally registered foreign lawyer,

Note. See sections 48ZU and 48ZV.

      the foreign lawyer may appeal to the Supreme Court against the refusal, cancellation or action.

(2)  The Supreme Court may make such an order in the matter as it thinks fit.

Division 3 Legal practice

48ZS   Scope of practice

(1)  A locally registered foreign lawyer may provide only the following legal services:

(a)  doing any work, or transacting any business, in the State concerning the law of any place in which the locally registered foreign lawyer is registered by a home registration authority of the lawyer,

(b)  legal services (including appearances) in relation to arbitration proceedings in the State of a kind prescribed by the regulations,

(c)  legal services (including appearances) in relation to proceedings before courts and other bodies in which knowledge of the foreign law of the place referred to in paragraph (a) is essential,

(d)  legal services in relation to conciliation, mediation and other forms of consensual dispute resolution in the State of a kind prescribed by the regulations.

(2)  Nothing in this Act authorises a locally registered foreign lawyer to practise Australian law.

(3)  Despite subsection (2), a locally registered foreign lawyer may advise on the effect of an Australian law if the giving of advice on Australian law is necessarily incidental to the practice of foreign law and the advice is expressly based on advice given on the Australian law by a domestic lawyer who is not an employee of the foreign lawyer.

48ZT   Form of practice

(1)  A locally registered foreign lawyer may (subject to any condition imposed under section 48ZL to the contrary) practise:

(a)  as a foreign lawyer on the lawyer’s own account, or

(b)  in partnership with other locally registered foreign lawyers or with domestic lawyers (or both) in circumstances in which, were the locally registered foreign lawyer practising as a domestic lawyer, such a partnership would be permitted by a law of the State, or

(c)  as a member of an incorporated legal practice or multidisciplinary partnership that is permitted by a law of the State, or

(d)  as an employee of a domestic lawyer or firm of domestic lawyers in circumstances in which, were the locally registered foreign lawyer practising as a domestic lawyer, such employment would be permitted by a law of the State.

(2)  Any such affiliation does not entitle the locally registered foreign lawyer to practise Australian law in the State.

48ZU   Application of Australian professional ethical and practice standards

A locally registered foreign lawyer must not engage in any conduct in practising foreign law that would, if the conduct were engaged in by a domestic lawyer in practising Australian law in the State, constitute professional misconduct or unsatisfactory professional conduct.

48ZV   Disciplinary action for breach of Australian professional ethical and practice standards

(1)  Part 10 applies, subject to this section, to a person who:

(a)  is a locally registered foreign lawyer, or

(b)  was a locally registered foreign lawyer when professional misconduct or unsatisfactory professional conduct the subject of a complaint allegedly occurred but is no longer a locally registered foreign lawyer (in which case Part 10 applies as if the person were a locally registered foreign lawyer),

      as if references in Part 10 to a legal practitioner were references to such a person.

(2)  Without limiting the matters that the domestic registration authority may take into account in determining whether a locally registered foreign lawyer should be disciplined for a contravention of section 48ZU, the domestic registration authority may take into account:

(a)  whether the conduct of the lawyer was consistent with the standards of professional conduct of the legal profession in any foreign place of registration of the lawyer, and

(b)  whether the lawyer contravened the section wilfully or without reasonable excuse.

(3)  The regulations may exempt any foreign lawyer or class of foreign lawyers from compliance with all or specified disciplinary provisions or arrangements.

48ZW   Letterhead and other identifying documents

(1)  A locally registered foreign lawyer may describe himself or herself and any law firm with which the foreign lawyer is associated in any of the ways designated in section 48ZX.

(2)  A locally registered foreign lawyer is required to indicate, on the lawyer’s letterhead and any other document used when practising foreign law in the State to identify the lawyer as a lawyer, the fact that the lawyer is a locally registered foreign lawyer.

(3)  A locally registered foreign lawyer may (but need not) indicate all States or Territories in which the lawyer (and any of the lawyer’s partners) are registered as foreign lawyers on any document referred to in this section.

(4)  A locally registered foreign lawyer may (but need not) indicate all places outside Australia in which the lawyer is registered to practise law on any document referred to in this section.

48ZX   Designation

(1)  A locally registered foreign lawyer may use the following designations:

(a)  the lawyer’s own name,

(b)  the title the lawyer is authorised by law to use in the place outside Australia in which the lawyer is registered by a home registration authority,

(c)  subject to subsection (2), the name of any law firm outside Australia with which the lawyer is affiliated (whether as a partner or otherwise),

(d)  if the foreign lawyer is a member of any law firm in Australia that includes both locally registered foreign lawyers and domestic lawyers, a description of the firm that includes reference to both domestic lawyers and locally registered foreign lawyers (for example, “Solicitors and locally registered foreign lawyers” or “Australian Solicitors and US Attorneys”).

(2)  A locally registered foreign lawyer who is a partner of a law firm outside Australia may use the name of the firm in practising foreign law in the State, or use the name in connection with the practice, only if:

(a)  the lawyer indicates, on the lawyer’s letterhead and any other document used in the State to identify the lawyer as a lawyer, that the law firm practises only foreign law in the State, and

(b)  the lawyer has provided the domestic registration authority with a copy of the partnership agreement or other acceptable evidence that the lawyer is a partner of the law firm, and

(c)  use of the name does not contravene any requirements of the law of the State concerning use of business names and will not lead to any confusion with the name of any established domestic or foreign law firm in the State.

(3)  A locally registered foreign lawyer who is a partner of a law firm may use the name of the firm as referred to in this section whether or not other partners of the firm are locally registered foreign lawyers.

48ZY   Advertising

(1)  A locally registered foreign lawyer is required to comply with any advertising restrictions imposed by the domestic registration authority or by law on the practice of law by a domestic lawyer that are relevant to the practice of foreign law in the State.

(2)  Without limiting subsection (1), a locally registered foreign lawyer must not advertise (or use any description on the lawyer’s letterhead or any other document used in the State to identify the lawyer as a lawyer) in any way that might reasonably be regarded as:

(a)  false, misleading or deceptive, or

(b)  suggesting that the locally registered foreign lawyer is a domestic lawyer,

      or that contravenes any requirements of the regulations.

48ZZ   Employment of domestic lawyer by foreign lawyer

(1)  A locally registered foreign lawyer may employ one or more domestic lawyers.

(2)  Employment of a domestic lawyer does not entitle a locally registered foreign lawyer to practise Australian law in the State.

(3)  A domestic lawyer employed by a locally registered foreign lawyer may practise foreign law but must not provide advice on Australian law to, or for use by, the foreign lawyer or otherwise practise Australian law in the State in the course of that employment.

(4)  Subsection (3) does not apply to a domestic lawyer employed by a law firm a partner of which is a locally registered foreign lawyer if at least one other partner is a domestic lawyer.

(5)  A period of employment by a locally registered foreign lawyer may not be used by a domestic lawyer to satisfy any requirements concerning a period of supervised practice imposed on the domestic lawyer by the domestic registration authority.

48ZAA   Indemnity insurance

(1)  A locally registered foreign lawyer who practises foreign law in the State must have appropriate indemnity insurance in respect of his or her practice in the State.

(2)  A locally registered foreign lawyer registered by the Bar Council has appropriate indemnity insurance if there is in force in respect of the lawyer a policy of indemnity insurance that provides a level of insurance in respect of his or her practice in the State that is the same as (or higher than) that approved by the Attorney General in respect of insurable barristers under section 38R (2) (b).

(3)  A locally registered foreign lawyer registered by the Law Society Council has appropriate indemnity insurance if there is in force in respect of the lawyer a policy of insurance:

(a)  that provides a minimum level of indemnity in respect of his or her practice in the State that is the same as (or higher than) that provided by an approved insurance policy required by section 41, and

(b)  the terms of which are broadly equivalent to such an approved insurance policy.

48ZAB   Trust accounts and fidelity fund contributions

(1)  Part 6 applies to a locally registered foreign lawyer who receives money on behalf of another person in the course of practising as a foreign lawyer in the State as if a reference in Part 6:

(a)  to a solicitor were a reference to a locally registered foreign lawyer, and

(b)  to practising as a solicitor were a reference to a locally registered foreign lawyer practising foreign law.

(2)  A locally registered foreign lawyer must not practise foreign law in the State in partnership with, or as an employee of, a domestic lawyer or firm of domestic lawyers unless the lawyer complies with any requirement made in accordance with the regulations under section 78A by the domestic registration authority concerning contributions to the Fidelity Fund.

(3)  In this section, a reference to money is not limited to a reference to money in the State.

48ZAC   Exemption by domestic registration authority

The domestic registration authority may exempt a locally registered foreign lawyer or class of locally registered foreign lawyers from compliance with a specified provision of this Act or the regulations, or from compliance with a specified rule or part of a rule that would otherwise apply to the locally registered foreign lawyer or class of locally registered foreign lawyers.

Division 4 Miscellaneous

48ZAD   Membership of professional association

A locally registered foreign lawyer is not required to join (but may, if eligible, join) any professional association.

48ZAE   Joint rules

Practice as a locally registered foreign lawyer is subject to the foreign lawyers rules.