New South Wales Consolidated Acts

LEGAL PROFESSION ACT 2004 - SECT 45

45 Application for grant of local practising certificate

(1) Applications generally An Australian lawyer may apply to the appropriate Council for the grant or renewal of a local practising certificate if eligible to do so under this section.

(2) General eligibility to make application An Australian lawyer is eligible to apply for the grant or renewal of a local practising certificate if the lawyer complies with any regulations and legal profession rules relating to eligibility for the practising certificate and if:

(a) in the case of a lawyer who is not an Australian legal practitioner at the time of making the application:

(i) the lawyer reasonably expects to be engaged in legal practice solely or principally in this jurisdiction during the currency of the certificate or renewal applied for, or

(ii) if subparagraph (i) does not apply to the lawyer or it is not reasonably practicable to determine whether it applies to the lawyer-the lawyer’s place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia, or

(b) in the case of a lawyer who is an Australian legal practitioner at the time of making the application:

(i) the jurisdiction in which the lawyer engages in legal practice solely or principally is this jurisdiction, or

(ii) the lawyer holds a current local practising certificate and engages in legal practice in another jurisdiction under an arrangement that is of a temporary nature, or

(iii) the lawyer reasonably expects to be engaged in legal practice solely or principally in this jurisdiction during the currency of the certificate or renewal applied for, or

(iv) if subparagraphs (i), (ii) and (iii) do not apply to the lawyer or it is not reasonably practicable to determine whether subparagraph (i), (ii) or (iii) applies to the lawyer-the lawyer’s place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia.

(3) Determination of place of legal practice in Australia For the purposes of subsection (2) (b), the jurisdiction in which an Australian lawyer engages in legal practice solely or principally is to be decided by reference to the lawyer’s legal practice during the certificate period current at the time:

(a) the application is made, or

(b) in the case of a late application-the application should have been made.

(4) Circumstances in which application cannot be made (more than one Australian practising certificate) An Australian lawyer is not eligible to apply for the grant or renewal of a local practising certificate in respect of a financial year if the lawyer would also be the holder of another Australian practising certificate for that year, but this subsection does not limit the factors determining ineligibility to apply for the grant or renewal of a local practising certificate.

(5) Application must not be made by ineligible lawyer An Australian lawyer must not apply for the grant or renewal of a local practising certificate if the lawyer is not eligible to make the application.

(6) Circumstances in which application must be made An Australian legal practitioner who:

(a) engages in legal practice solely or principally in this jurisdiction during a financial year, and

(b) reasonably expects to engage in legal practice solely or principally in this jurisdiction in the following financial year,

must apply for the grant or renewal of a local practising certificate in respect of the following financial year.

(7) Subsection (6) does not apply to an interstate legal practitioner who applied for the grant or renewal of an interstate practising certificate on the basis that the practitioner reasonably expected to engage in legal practice solely or principally in this jurisdiction under an arrangement that is of a temporary nature.

(8) The exemption provided by subsection (7) ceases to operate at the end of the period prescribed by the regulations for the purposes of this subsection.

(9) Application for local practising certificate by lawyer who practises in Australia and overseas A reference in this section to engaging in legal practice principally in this or any other jurisdiction applies only to legal practice in Australia. Accordingly, an Australian lawyer who is engaged or expects to be engaged in legal practice principally in a foreign country is nevertheless eligible to apply for the grant or renewal of a local practising certificate if the lawyer otherwise meets the requirements of this section.

Note: The purpose of this subsection is to deal with a case where a person practises both in Australia and overseas. In that case, overseas practice is to be disregarded (even if it forms the principal portion of the person’s overall practice), so that eligibility is determined by reference to the person’s practice in Australia.

(10) Application for local practising certificate by lawyer of prescribed class An Australian lawyer is also eligible to apply for the grant or renewal of a local practising certificate if the lawyer is of a class or description prescribed by the regulations. The regulations may provide that a Council has a discretion as to whether or not to grant or renew a local practising certificate to a person in his or her capacity as an Australian lawyer of that class or description.

Note: The purpose of this subsection is to enable regulations to be made conferring eligibility on an Australian lawyer who is not otherwise eligible to apply for a local practising certificate. Regulations could be made conferring eligibility, for example, on an Australian lawyer who practises exclusively overseas, or an Australian lawyer who holds a public office of a specified kind.