This article is written by Rachit Garg, from the University of Petroleum and Energy Studies. This article aims to give an introduction to the Australian Legal System and act as a guide for someone who wants to practice law in Australia.
Table of Contents
Introduction
In recent times choosing to study and practise law can lead to excellent opportunities for aspirants and more and more students are considering it. Australia is also one of those countries which are attracting a lot of foreign lawyers who want to build their legal career in Australia.
Australian Legal System
Australia’s legal system is also referred to as the ‘Common law system’. This system is especially inherited by those nations whose development was influenced because of British colonisation. Australian Courts work on the principles of the ‘adversarial’ system.
What is an adversarial system?
In this system, the judge listens to the argument of both the side (petitioner and respondent) and after they both have cross-examined each other, the judge comes to a decision. However, in countries like France, the ‘inquisitorial’ system is followed, in which the judge plays an active role and examines evidence and questions witnesses as well.
Moreover, Australia operates in a form of constitutional monarchy. At the federal level, the first institution of law is considered to be the Commonwealth Constitution, which comprises rules and regulations that control the power and authority of the parliament. Each state in Australia has its own constitution.
Solicitor and Barrister
Solicitor is a legal practitioner, who spends most of their time assisting their clients with their legal affairs and matters. They provide clients with advice and helps them in handling a legal issue. Moreover, they can even help them in drafting legal documents and can negotiate on their behalf.
On the other hand, barristers spend most of their time in courtrooms and do not involve themselves in the daily legal activities of their clients. Moreover, the role of the barrister is generally to act on behalf of their client in front of a jury and a judge. Generally, the solicitor and barristers work together and the former advise the later on how to proceed while in the court
How to become a lawyer in Australia?
If one wants to be admitted as a lawyer in Australia, he/she needs to fulfil these three requirements
- Complete a law degree or equivalent course.
- Undertake a Practical Legal Training (PLT) program which will get one a Graduate Diploma of Legal Practice.
- Seek admission to practice.
Complete a Bachelor of Laws (LLB)
It is necessary to obtain a Bachelor of Laws (LLB) degree from recognised Australian University. One can either complete a Bachelor of law degree (LLB) which typically takes 4 years, or a combined LLB, which takes 5+ years to complete. Moreover, some law degrees may have some variation in subjects but it is required to complete ‘Priestly 11’ core law subjects which necessarily have to be completed no matter which law school one is in.
Priestley 11 subjects are:
- Torts
- Property Law
- The Law of Evidence
- Federal and State Constitutional law
- Ethics and Professional Responsibility
- Equity (including trusts)
- Law of Contracts
- Criminal Law and Procedural Laws
- Civil Dispute Resolution
- Company law
- Administrative law
Some of the top Law Schools in Australia are:
- University of Melbourne Law School – ranked 7th in the world in 2019, amongst the oldest laws school in Australia
- University of Sydney
- UNSW Law – University of New South Wales – amongst Australian “group of Eight”
- The University of Western Australia
If one is a postgraduate student, he/she can complete their Juris Doctor (2 years full-time)
Complete Practical Legal Training
After completing and graduating with a law degree, one must complete the Graduate Diploma in Legal Practice (GDLP) or Practice Legal Training (PLT) as it’s most popularly known. Each state/territory in Australia has its own Legal Admissions Board that assists students in becoming a lawyer. These boards approve PLT course providers. The Practice Legal training can be of the duration of 80 days under the supervision of a lawyer who has experience of three years in the legal field. Moreover, the Graduate Diploma of Legal Practice can be obtained in six months.
Other ways of completing your training:
- Certification through Supervised Workplace Training: This option is only available in Queensland and Victoria and takes at least 12 months to complete.
- Clerkship: this requires one to get a legal job and take at least 12 months to complete.
Once the training is completed the trainee can move to admission to legal practice in Australia.
Admission to Legal Practice
After getting the legal training, the graduated lawyer must apply to the relevant state or territory’s Admission Authority (Legal Practitioners Admissions Board) within 5 years of graduation.
Scope of Indian Lawyers in Australia
Can one practise foreign law in Australia?
According to the law council of Australia, there are no legal barriers preventing a foreign lawyer from providing foreign legal services on a fly-in, fly-out basis, which means visiting Australia for the purpose of providing legal services on a temporary basis. According to this condition, foreign lawyers can visit Australia, act for their clients, and give legal services (for example, international arbitrations). However, it is only allowed for the duration of 90 days in any 12 months period.
Provided the foreign lawyer is not planning to maintain a professional legal office in Australia, he/she is not required to register with an Australian Legal regulatory body.
Moreover, if the foreign lawyer is eligible to provide legal services in his/her home jurisdiction, he/she is also eligible to do the same in Australia. They are only allowed to practice law to the extent they are entitled to in their own country.
However, if a foreign lawyer wants to practice for more than 90 days in any 12 months duration or wants to establish a commercial presence can do it after going through a registration process in a local state or territory authority as an ‘Australian-registered foreign lawyer’. After being permitted to practice, the foreign lawyer can practice the law of those foreign jurisdictions in which he/she is qualified. He/she is also allowed to work in a commercial association with Australian lawyers.
Moreover, there is a concept of ‘mutual-recognition’ in Australia, according to which, a foreign lawyer registered to practice in one jurisdiction will be allowed to engage in that practice in other jurisdictions of other states as well (except South Australia) without the need to apply for additional registration.
He/she is subject to the same ethical and professional standards of an Australian legal practitioner. However, he/she cannot practice Australian law but can employ Australian legal practitioners.
What if one wants to practice local law in Australia?
Any lawyer who has graduated with a law degree and trained outside Australia and wished to become eligible to practice local law in Australia then he/she must apply to an admitting authority in order to assess his/her academic qualification are equivalent to the qualification required by a local applicant in Australia. These assessments will help to figure out what additional subjects the foreign applicant needs to undertake and the timeframe in which the studies need to be completed for admission and in order to be eligible to practice in Australia.
Moreover, to be able to be admitted as a practising lawyer in Australia on the basis of qualification obtained from outside Australia, the applicant must fulfil the following criteria:
- Must have completed a tertiary course and because of which was able to practice law in his/her home jurisdiction. The course must be substantially equivalent to the three-year full-time law course offered by Australian Universities.
- Must have successfully completed those subjects which are equivalent to the ones the Australian applicants have to successfully complete in order to be admitted as a legal practitioner in Australia.
- Must have Demonstrated and acquired understanding and competence in certain skills values and practice areas, which are substantially equivalent to the ones Australian applicants must acquire, also demonstrate understanding and competence in it before being admitted as a legal practitioner in Australia.
- Before two years of seeking admission, one must undertake the International English Language Testing System Academic Module (IELTS) test and must obtain a minimum score of 7.0 for reading and listening, 7.5 for speaking, and 8.0 in writing, in the components of the test.
However, the admitting authority may dispense with one or more requirements which are referred to in (b.) and (c.) options above if it believes the applicant’s experience is sufficient and relevant and substantial to justify the dispensation.
Australian Practicing Certificates
For the duration of the first 18 months or 2 years of post-admission legal practice, the practitioner practising as a solicitor will have to follow a condition that is imposed on their practising certificate that they can engage in legal practices only under someone supervision. In the case of a barrister, they may need to take a bar reading or similar program.
Moreover, anyone who has been granted an Australian practising certificate from a particular state or territory can also practice local law in any other Australian state or territory and will not be required to apply for an additional practising certificate.
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