7 March 2016
Christopher Dyer, Policy Lawyer
Law Council of Australia
Mutual recognition arrangements apply differently to the legal services sector because of the distinction between domestic and foreign law. Despite a trend towards incorporating international and comparative law subjects into law degrees, legal training is inherently focussed on preparing a student to practise in a particular jurisdiction.
Recognition as a foreign lawyer does not, in contrast to other professional service sectors, entail recognition that the foreign lawyer’s qualifications are equivalent to local qualifications and learning about the law of a foreign jurisdiction is not intended to prepare a person to practise local law.
Similarly, legal professionals have duties to the court in the jurisdiction where they are admitted to practise to uphold certain ethical and professional standards. A person practicing foreign law in Australia owes this duty to the foreign court where they are admitted to practise, rather than the court in Australia.
While these differences may be seen as hindering access by foreign lawyers to a local jurisdiction, the reality is that lawyers who practice foreign law complement and increase the range of legal services that are available in that local jurisdiction. This important benefit is recognised in Australia’s regulation of foreign lawyers. For example, s58 of the Legal Profession Uniform Law (NSW) states that:
The objective…is to encourage and facilitate the internationalisation of legal services by providing a framework for the regulation of the practice of foreign law in this jurisdiction by foreign lawyers as a recognised aspect of legal practice in this jurisdiction.
At best, where a foreign lawyer seeks to practise Australian law as a local lawyer, mutual recognition arrangements may provide a pathway for the recognition of part of their foreign qualification as being equivalent to the relevant local qualification.
There is one noteworthy exception to this general principle. The Trans-Tasman Mutual Recognition Arrangement, agreed between Australia and New Zealand in 1996, grants a person who is admitted to practise Australian law an automatic entitlement to practise New Zealand law, and vice versa.
For more information, contact Christopher Dyer on +61 2 6246 3716 or by email to Christopher.Dyer@lawcouncil.asn.au.