Australia: The Twain (and Only the Twain) Meet—The Demise of the Legal Profession National Law

Abstract

In 2011, Linda Haller reported in Legal Ethics on proposals for national regulation of the legal profession in Australia. In common with other English-speaking federations, the legal profession in Australia is organised on a sub-national basis: in Australia's case, there are separate professions (and some divided) in eight States and Territories. The federal Parliament has no power that would enable it to settle one scheme of regulation for lawyers across the country. However, the Australian federation had actually secured a high degree of harmonisation in the Model Laws on National Legal Practice (Model Laws), which all Australian jurisdictions, apart from South Australia, implemented between 2004 and 2008. The Model Laws set a similar structure for the regulation of lawyers, but within that structure allowed significant variations from State to State. As a result, large national law firms, in particular, wanted complete uniformity across the States and Territories, and to have regulatory powers exercised by national regulators. In 2009, the development of a Legal Profession National Law (National Law) was therefore entrusted to a national Taskforce chaired by Roger Wilkins, Secretary of the federal Attorney-General's Department, and a Consultative Committee chaired by former federal Attorney-General Michael Lavarch. The executive government leanings of the whole project would soon become apparent. Still, when Dr Haller wrote in 2011, the three most populous States (New South Wales, Victoria and Queensland) and the least populous Territory (the Northern Territory) had agreed to participate in the National Law: a scheme of national regulation that would embrace 85 per cent of Australia's lawyers.