Practising in Victoria
Who can practise?
Under the Legal Profession Act 2004 (Vic) (“the Act”), a person may only engage in legal practice in this jurisdiction in one of the following capacities:
- As an Australian legal practitioner
Subject to limited exceptions (see below), section 2.2.2(1) of the Act prohibits a person from engaging in legal practice in Victoria unless the person is an Australian legal practitioner. An Australian legal practitioner is a person who:
- has been admitted to the legal profession in an Australian jurisdiction (that is, an Australian lawyer); and
- holds a current local (Victorian) or interstate practising certificate.
A person who breaches section 2.2.2(1) commits an offence and is liable to a maximum penalty of two years’ imprisonment. For further information on applying for a Victorian practising certificate, see Applying for a Victorian practising certificate.
2. Within one of the limited capacities in section 2.2.2(2) of the Act
Section 2.2.2(2) of the Act provides limited exceptions to the prohibition in section 2.2.2(1) and enables a person who is not an Australian legal practitioner to engage in legal practice in Victoria in the following specified circumstances:
- under the authority of a law of this jurisdiction or of the Commonwealth;
- as an incorporated legal practice in accordance with Part 2.7;
- as a community legal centre in accordance with Part 2.9;
- as an Australian-registered foreign lawyer practising foreign law in accordance with Part 2.8 (see below);
- as a person who prepares an enterprise agreement or agreement-based transitional instrument within the meaning of the Commonwealth Fair Work legislation on behalf of a party or proposed party to the agreement;
- as a licensee under the Conveyancers Act 2006who performs conveyancing work in accordance with that Act;
- as a person who represents another person in proceedings before a court or tribunal with leave of the court or tribunal;
- a person who does anything in the course of their employment with the Crown or a public authority or in the performance of duties under an appointment by the Governor in Council.
Engaging in legal practice in any other circumstances will amount to a contravention of section 2.2.2(1) of the Act and attract a maximum penalty of two years’ imprisonment.
3. As a Foreign lawyer in accordance with Part 2.8 of the Act
The term “foreign lawyer” as it is applied in the Act, refers to a lawyer who practises the law of a foreign jurisdiction in Victoria. Under section 2.8.4 of the Act, a person can only practise foreign law in Victoria if they are:
- an Australian legal practitioner;
- an Australian-registered foreign lawyer (that is, they are registered to practise foreign law in an Australian jurisdiction); or
- in very limited circumstances, an overseas-registered foreign lawyer (that is, they are registered to engage in legal practice in a foreign country by the relevant registration authority in that country). An overseas-registered foreign lawyer may only practise foreign law in Victoria without registration:
- for periods that do not in aggregate exceed 90 days in any period of 12 months; or
- if subject to a restriction imposed under the Migration Act 1958 (Cth) (for example a visa restriction) that limits the period the person may undertake work or transact business in Australia;
provided that they do not maintain an office or become a partner or director of a law practice.
Under the Act, foreign lawyers are not permitted to practise Australian law in Victoria. They may only practise the law of the foreign jurisdiction in which they are currently registered to engage in legal practice. For further information on foreign lawyers, see Foreign Lawyers.
Representing or advertising an entitlement to engage in legal practice
Representing or advertising that a person or body corporate is entitled to engage in legal practice when they are not so entitled is an offence under section 2.2.3 of the Act attracting a penalty of 120 penalty units. Further, taking or using a name or title specified in section 2.2.4 of the Act by a person who is not entitled to take or use that name gives rise to a rebuttable presumption that the person represented that they are entitled to engage in legal practice. Persons who are entitled, and the circumstances in which they are entitled, to take or use a name or title are specified in the Legal Profession Regulations 2005 (“the Regulations”). Designations and advertising for foreign lawyers is similarly regulated under Part 2.8 of the Act.
Ensuring compliance with the Act
Australian legal practitioners and law practices should ensure that their employee legal practitioners, whether local, interstate or overseas-qualified, are adequately qualified, registered and supervised. An Australian legal practitioner or law practice that assists an unqualified person to engage in legal practice in this jurisdiction will commit contempt of Court under section 2.2.10 of the Act. Section 2.2.9 of the Act also imposes a penalty against an Australian legal practitioner or law practice that enters into an agreement or arrangement with a person who is not an Australian legal practitioner under which that person is entitled to share the income from the practitioner’s or law practice’s legal practice other than as permitted by the Act. Contravention of Part 2.2, Reservation of Legal Work and Legal Titles, of the Act is also capable of constituting unsatisfactory professional conduct or professional misconduct and may result in disciplinary action being taken by the Legal Services Commissioner.
Practitioners are also required to:
- Maintain appropriate professional indemnity insurance
- Contribute to the Fidelity Fund if required to do so
- Comply with the Act, its regulations and any applicable legal profession rules.