Government lawyers must now hold a practising certificate
Under the Legal Profession Uniform Law government lawyers, as defined by the legislation, are generally required to hold a practising certificate.
A government lawyer is defined as someone who engages in legal practice only:
- as an officer or employee of a government authority; or
- as the holder of a statutory office of the Commonwealth or of a jurisdiction; or
- in another category specified in the Uniform Rules.
Are there any exemptions?
A person who is not admitted to the legal profession but who, at any time in the 12 months before commencement of the Uniform Law, fell within the Legal Profession Act 2004 (Vic) exemption (s 2.2.2(2)(g)) is exempt in respect of his or her official functions as a government lawyer. Section 169(2) of the Application Act preserves this exemption.
Policy work, including commentary and development on behalf of government, may also be exempt insofar as such legal work is not engaging in ‘legal practice.’
Likewise, a person is entitled to engage in legal practice under the authority of a law of the Commonwealth or of a jurisdiction, other than the Uniform Law or Uniform Rules.
Rule 10 of the Uniform Rules sets out further exemptions for an:
- officer or employee of a government authority drawing instruments in the course of the person’s duty, otherwise than as parliamentary counsel, legislative counsel or legislative drafter (however described); and
- an officer or employee of a government authority undertaking appearance work in courts or tribunals under the authority of a law of a jurisdiction or of the Commonwealth.
For more information see our fact sheet: Government lawyers and the Uniform Law (103KB PDF)
Government lawyers with a current corporate practising certificate
Government lawyers who have already applied for a 2015-16 corporate practising certificate need take no further action. You will receive your corporate practising certificate on the date you selected as your commencement date. This will entitle you to work as a corporate lawyer or a government lawyer until the end of the 2015-16 practising year (30 June 2016). You will then be required to renew your certificate and select the certificate type that best describes your intended practice for the following year.
Government lawyers who have not yet applied for a 2015-16 practising certificate
Government lawyers who have not yet applied for a practising certificate for 2015-16 should apply now through LSB Online. You can now select a government practising certificate type.
Applications received from 2 June 2015 will be processed under the provisions of the Legal Profession Uniform Law Application Act 2014. For more information on how government lawyers are affected by supervised legal practice, see our fact sheet on Government lawyers, supervised legal practice and the Uniform Law (104KB PDF).
Legal practice with a government lawyer practising certificate
A person whose PC includes a condition restricting their entitlement to practice only as a government legal practitioner may only engage in practice as a ‘government lawyer’ and:
- as a volunteer at a community legal service (CLS), or otherwise on a pro bono basis; and
- until the PC is renewed, as a corporate legal practitioner. This will assist lawyers to move between corporate and government legal practice without having to immediately vary their PC.
Government lawyers holding PCs will be bound by the Uniform Law and Uniform Rules, including Legal Practice Rules, Legal Profession Conduct Rules and Continuing Professional Development Rules.
Government lawyers will not need to make contributions to the fidelity fund. The Uniform Rules exempt government lawyers from the requirement to hold or be covered by approved insurance (unless it is needed to cover volunteer work at a community legal service, or some other pro bono work).
Supervised Legal Practice (SLP)
Practitioners must complete a period of SLP before they can hold an unrestricted practising certificate – a certificate which entitles them to engage in legal practice unsupervised.
The requisite period of SLP will depend on how a lawyer qualifies for admission:
- lawyers who complete articles or a similar supervised workplace training program must complete 18 months of SLP;
- lawyers who complete other practical legal training, for example, a graduate diploma of legal practice, must complete 2 years of SLP.
Government lawyers who were in employment with the Crown or a public authority or performing duties under an appointment by the Governor in Council prior to the commencement of the Uniform Law, are entitled to have any period of legal practice engaged in by the person before the commencement day, whether supervised legal practice or not, to be taken to be a period of supervised legal practice, and is to be subtracted from the period of supervised legal practice required by the statutory condition imposed by that section on an Australian practising certificate granted to the person under the Legal Profession Uniform Law (Victoria).
Removal of the Supervised Legal Practice Condition
A practitioner who has completed the requisite period of SLP may request removal of the condition. Those who have not held a certificate, or who have not been supervised for the requisite period, cannot make a removal application. Such lawyers, however, may be entitled to apply for an exemption from the condition.
Exemption from the Supervised Legal Practice Condition
An exemption application must include a statutory declaration and supporting documentation. A partial exemption may be granted when an application covers less than the requisite period of practice.
Legal Profession Act Exemption
An applicant for full or partial exemption must submit a statutory declaration and supervisor letter(s) evidencing a period of SLP.
Uniform Law Exemption
All legal practice (whether supervised or not) will count towards the requisite period if it is undertaken:
- before the Uniform Law commences; and
- in the course of employment with the Crown or a public authority, or in the performance of duties under a Governor in Council appointment.
An applicant for full or partial exemption under the Uniform Law must:
- with regard to government practice, submit a statutory declaration and employer letter(s) evidencing a period of legal practice; and
- with regard to any other legal practice, submit a statutory declaration and supervisor letter(s) evidencing a period of SLP.
- applicants may rely on any period of practice, including their most recent. It is not necessary to refer to the period when the applicant first commenced practice;
- applying for an exemption from, or the removal of, the SLP condition is a ‘one-off’ process. Once the exemption or removal is granted, the condition will not be re-applied to a certificate.
Pro bono work
A person may engage in legal practice as a volunteer at a CLS or otherwise on a pro bono basis on any ‘type’ of PC. Government lawyers who do not hold a PC, may apply for a PC which authorises legal practice both as a volunteer at a CLS and otherwise on a pro bono basis only.
To provide such services a government lawyer must be covered by an approved professional indemnity insurance policy.
Please contact the LSB Online Support team (Tel 03 9679 8111) with any queries.