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Asher, Raynor --- "Legal and education standards in New Zealand" [2011] ALRS 5

Last Updated: 31 October 2011

Legal and education standards in New Zealand[*]

The Honourable Justice Raynor Asher


Between 1841 and 1930 legal education, and the requirements for admission to the profession in New Zealand, were the responsibility of the Judiciary of New Zealand pursuant to a number of Colonial Ordinances and Acts of Parliament, and prescribed in consecutive sets of Judges’ Rules. After the establishment of the University of New Zealand in 1870, the practical implementation of the admission requirements was progressively delegated by the Judiciary to the University.

In 1925, a Royal Commission which had been commissioned to examine a number of matters relating to University education in New Zealand, recommended that –

... a Council of Legal Education representative of the Judges, the leaders among practising barristers and solicitors, and the University teachers of law is the most satisfactory method for providing and for watching over a course of legal education which shall comply with the requirements of a good professional education, and at the same time satisfy the demand for a training which is strong enough on the practical side.

Accordingly in 1930 the Council of Legal Education was established. The original Council consisted of six members: two judges of the Supreme Court, two representatives of the New Zealand Law Society, and two law professors or teachers from the University of New Zealand. The Council was given recommendatory powers for the purpose of enabling the University to discharge its functions, which concurrently with the establishment of the Council had been given the responsibility for prescribing and conducting the necessary legal qualifications and examinations.

However, in 1961 the University of New Zealand was dissolved and the constituent Colleges established in their own right.

In order to preserve uniformity across law degrees, to maintain standards, and to secure input from representatives of all, rather than one particular category of stakeholder in legal education, the Council of Legal Education was reconstituted in 1961 as an independent statutory body to take over the role of defining, prescribing and arranging for the provision of courses of study, including practical training, for those persons (from New Zealand and overseas) wishing to be admitted as barristers and solicitors, and generally to supervise legal education in New Zealand.

In 1961 the membership of the Council consisted of representatives from the Judiciary, the New Zealand Law Society and the Law Schools. By 1982 membership had been extended to encompass a District Court Judge and law student representation, and by 1990 a non-lawyer member nominated by the Minister of Justice.

The 1990 Amendment Act amended the Law Practitioners Act 1982. Some major consequences for the Council were –

(a) It expanded the membership of the Council to strengthen the interests of the public without affecting the balance between academic and professional legal interests which had always been a characteristic of the Council.

(b) It established the Council as body corporate with perpetual succession, a common seal, and the rights, powers and privileges necessary to carry out its functions.

(c) It established the basis for the Council to be subject to Part V of the Public Finance Act 1989 as if it were a Crown entity specified in the Fourth and Fifth Schedules to that Act.

(d) It authorised the charging of fees for work done for services performed by the Council and for entry into the Council’s examinations.

(e) It made requirements of the Council as an employer, including consultation with the State Services Commission.

(f) It set out the Council’s financial responsibilities and exempted it from income tax.

(g) It set out the Council’s duty to report annually to the Minister of Justice.

The Lawyers and Conveyancers Act 2006 was passed in March 2006 and came into force on 1 August 2008.

The Council is covered by Part 8 of the Act. The Council was reconstituted with its current form and membership. Some changes have been made to the Council’s operations as noted below:

(a) The Council has been renamed the New Zealand Council of Legal Education.

(b) The functions and powers of the Council, whilst remaining essentially the same as in the 1982 Act, have been sharpened and modernised to reflect current terminology and practices.

(c) A new function has been introduced into the Council’s role and that is responsibility for recognition of qualifications for the purposes of the principles set out in section 15 of the Trans-Tasman Mutual Recognition Act 1996.

(d) The Act makes the Council responsible for making the final decision in respect of the assessment of applications of all overseas graduates and admitted practitioners.

(e) The Act confirms that the Council may deliver courses itself, or arrange for the delivery of courses by other providers.

(f) There is a specific power enabling the Council to license other providers of practical legal training.

(g) The funding mechanism for the Council has changed so that rather than be funded through the New Zealand Law Foundation, the Law Society is required to levy practitioners to secure the necessary funds for the Council.

(h) With respect to the Institute, new provisions are included in the Act. Under these provisions the Council is statutorily required to maintain the Institute in its current form as a committee of Council. An express requirement to ensure that the Institute continues to provide practical legal training for candidates for admission as barristers and solicitors of the High Court is imposed on the Council.

General activities of the New Zealand Council of Legal Education

The Council is a regulatory body and is responsible for the regulation, quality and provision of legal training for those wishing to be admitted as barristers and solicitors to the profession in New Zealand.

These activities include –

To carry out its tasks in discharge of its functions set out in the Lawyers and Conveyancers Act 2006, the Council maintained its general liaision with the Judiciary, the legal profession, the Universities and law students, and specifically undertook the activities detailed below.

Provision of Courses

The Council prescribes the core curriculum for the bachelor of laws degree and monitors these subjects through a moderation system.

The five compulsory subjects which are moderated are –

There is concern in some quarters that this list of core subjects is too narrow. It was much broader but in 1987, at a time when everything was being deregulated in New Zealand, the core subjects were greatly reduced.

During 1997 the Council introduced a requirement for all law students who completed their bachelor of laws, or bachelor of laws with Honours degrees after 31 July 2000 to pass a university course in legal ethics as a further requirement for admission. On 1 August 2008 the requirement was extended to all applicants for admission regardless of the completion date of their degree.

The course which was prescribed and moderated by the Council, has as its broad principles –

The course was introduced in response to a report[†] which had recommended that courses in legal ethics be required at three levels of legal education: academic, vocational training and continuing education after admission to the profession. In New Zealand this was implemented by the Council by the introduction of the undergraduate university course in legal ethics which, while not a compulsory degree subject, is required for those students wishing to be admitted to the profession. The requirement was further implemented by the introduction of Ethics and Professional Responsibility components into the Council’s Professional Legal Studies Course.

Assessment of overseas law qualifications


The overseas qualification assessment system involves examination of the credentials of overseas law graduates and practitioners through a process of analysis and written assessment, notification and liaison with candidates, assistance and advice, reviews and appeals. It also involves reporting requirements, and preparation of material for applicants.

The recommendation produced by the Council forms the basis for eligibility for admission of overseas graduates and practitioners to the legal profession in New Zealand, upon completion of the prescribed requirements.

Applications are decided on their merits, after thorough examination of all documents, and following earlier policy and precedents established by the Council.

A review process is available for applicants who present new material not considered in the earlier assessment. Reviews take place in approximately 10% to 20% of cases.

The assessment process involves a detailed analysis of –

The examination requires an analysis of the extent to which the applicant’s degree, training and experience equate with the admission requirements for New Zealand candidates.

In particular the Council seeks to establish –

All New Zealand law graduates who wish to be admitted to the profession must also undertake a university course in legal ethics. During the assessment process the Council also examines whether an overseas applicant has completed a course in legal ethics and professional responsibility. Any applicant who has not completed such a course may be required to do so.

An assessment is also made by the Council of the scope of any courses or practical training that an applicant may have completed, and any related experience. If the combined practical training and experience is insufficient an applicant may be required to complete a skills-based training course.

Applications are processed as expeditiously as possible. A typical application may take 12 weeks to consider, and sometimes a longer time may be required depending on the nature of the application and the number of cases under consideration.

Number of applicants

The total number of applications dealt with during the year was 101.

Applications were received from the following countries:

Argentina, Belgium, Bangladesh, Brazil, China (including Hong Kong), Ethiopia, Fiji, France, Germany, India, Ireland, Korea, Malaysia, Pakistan, Philippines, Scotland, South Africa, Sri Lanka, Sudan, Trinidad and Tobago, United Kingdom, United States of America and Zimbabwe.

The total number of applications received since 1998 are listed in the table below:


Internal credits


In the case of the Council’s overseas credits system an overseas graduate or admitted practitioner applies to the Council to have an overseas qualification assessed, the Council examines the core law degree subjects undertaken by that person. If a person’s degree subject is found to adequately cover the common law principles in the subject, the applicant is given a credit in that particular subject. However, the applicant will almost certainly have to undertake the Council’s New Zealand Law and Practice Examination in the equivalent Part, which tests understanding of the New Zealand law. It is rare for any exemptions to be granted from the New Zealand Law and Practice Examination. There must be clear evidence of a real knowledge and understanding of the relevant New Zealand law. It is unlikely that any person who has not worked in New Zealand or been in a New Zealand University would be given credit.

If an applicant has not graduated but has partially completed an overseas law degree, and wishes to enter the profession in New Zealand, or to obtain a law degree, the applicant will proceed to a University in New Zealand, enrol in an LLB degree, and seek credit in any relevant subjects, which may include the core law subjects.

A potential difficulty arose because if the Universities granted credit in the core law subjects without any further requirements being imposed, those undergraduates who commenced their undergraduate degree overseas, but transferred, or wished to transfer to a New Zealand LLB degree, were significantly advantaged over their graduate/admitted compatriots, who would have to undertake the New Zealand Law and Practice Examination prescribed by the Council. From the Council’s standpoint, those undergraduate students were also disadvantaged in that they had at no stage studied or been assessed in New Zealand law in these core law subjects.

Similar considerations applied to students seeking to undertake core law courses on an exchange programme. In those cases students might obtain passes in the equivalent core law subjects overseas, but not be required to undertake any further study in the area in New Zealand.

As a result of these potential inconsistencies, a Protocol was drafted, through the Chief Executive’s Office and the Law Deans, as a joint initiative between the Council and the Faculties. The Protocol, entitled the Protocol between the Council and the Universities on Internal Credits, is designed to remedy any inconsistencies in processes, by establishing a standard procedure to be followed in internal credit cases.

The Protocol

The Protocol encourages the Faculties to seek a recommendation from the Council as to the credit to be given in core law subjects in respect of –

The Council’s recommendation may include requiring the applicant to complete the equivalent Part of the New Zealand Law and Practice Examination.

The Protocol came into effect on 1 April 2003. Since then the Council has provided recommendation for a number of applications from the Law Schools.

Examination in New Zealand Law and Practice


The Council requires almost all overseas applicants to pass all, or a number of Parts, of an examination on the law of New Zealand – the New Zealand Law and Practice Examination.

The examination consists of a six Part written examination following a comprehensive self-taught prescription. It is generally held bi-annually, over a period of four days. The purpose of the examination is to test the applicant’s knowledge of the distinct features of the New Zealand law, and proceeds on the basis that the applicant will already have an understanding of the common law principles in that subject, by virtue of the applicant’s overseas law degree.

The examination covers the areas of legal system, contract law, criminal law, property law, torts and equity and succession. Each part consists of one written examination of 90 minutes duration. Applicants are required to sit these papers unless they can show that they are familiar with the relevant law of New Zealand in relation to the particular subject. The knowledge of applicants is assessed by a specialist Credits Committee appointed by the Council.


During the year the Council, through the Chief Executive’s Office, implemented systems to deal with applications for exemptions from certain Council requirements on the basis of equivalent training.

Professional legal studies course


The Council is also responsible for providing practical legal training for New Zealand law graduates, and overseas graduates and practitioners as required.

In 1986 a review commissioned by the Council of Legal Education and the New Zealand Law Society[‡] recommended the establishment of a full-time practical skills-based training course which would complement the experience which a law graduate gained while working in a legal environment, and would replace the fifth professional year at university where students had previously been trained in practically oriented legal subjects.

In order to provide the course the Council established the Institute of Professional Legal Studies in 1987.

Institute of Professional Legal Studies

The Institute is the Council’s provider arm for the delivery of the Professional Legal Studies Course. The Council has a statutory duty to arrange the provision of such a course, and must ensure that it has the ability to do so to ensure that the course is accessible to all students.

The Institute is managed by a National Director, who is appointed by the Chief Executive of the Council. A Delegation Document has been in place since 2003 under which the National Director operates and reports to the Chief Executive of the Council.[§]

In 2003 the Council also redrafted the regulations governing the Professional Legal Studies Course which allowed for a generic, rather than provider specific, set of regulations.[**] A major review of these regulations was undertaken in 2004 which resulted in the promulgation of the Professional Legal Studies Course Regulations 2004 which further emphasised the generic nature of the regulations.

In 2003 the Council licensed the Institute of Professional Legal Studies to provide a 13-week face to face, full-time course, and a 19-week part face to face, part distance delivered course. The Council has also licensed another provider, originating in Australia, the College of Law New Zealand. The College was licensed, by the Council, to provide an 18-week part face to face, part distance delivered course. Both organisations were licensed for a period of two years. It operates in competition with the Institute. At present it attracts slightly more than 50% of those enrolling in professional courses. The licensing of a second provider added a significant new dimension to the Council’s operations. Since then both providers have been relicensed twice, each time for three years.

A special regime applies to Trans-Tasman admission. It is covered by the Trans-Tasman Mutual Recognition Admission Regulations 2008. Australian practitioners on application are able to practice in New Zealand in the same way New Zealand practitioners can practice in Australia. The assessment of any application is carried out by a Registrar of the High Court.

[*] Much of the material for this paper is taken from the annual report of the New Zealand Council of Legal Education.

[†] WB Cotter QC and C Roper Report on a Project on Education and Training in Legal Ethics and Professional Responsibility for the Council of Legal Education and the New Zealand Law Society (Wellington, 1996).

[‡] N Gold Report on the Reform of Professional Legal Training in New Zealand for the New Zealand Law Society and the Council of Legal Education (Wellington, 1987).

[§] Statement of Accountability Relationship Between the Council of Legal Education and the Institute of professional Legal Studies (Wellington, 2002).
[**] See now Professional Legal Studies Course Regulations 2004.

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