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LEGAL PROFESSION UNIFORM LAW (NSW) - SCHEDULE 3

SCHEDULE 3 – Provisions applying in relation to non-participating jurisdictions

Part 1 - Preliminary

Notes:
1 Some provisions of this Law apply in their own terms in relation to non-participating jurisdictions (whether by reference to any jurisdiction or by specific reference to a non-participating jurisdiction).
In particular--
• the term
"Australian lawyer" is defined in section 6 so as to include a person admitted to the Australian legal profession in any jurisdiction;
• the terms
"Australian practising certificate" and
"Australian registration certificate" are defined in section 6 so as to include certificates granted in a non-participating jurisdiction;
• the terms
"Australian legal practitioner" and
"Australian-registered foreign lawyer" are defined in section 6 so as to include legal practitioners and foreign lawyers holding certificates granted in a non-participating jurisdiction.
This Schedule contains other provisions that apply in relation to non-participating jurisdictions.
2 A person who is an Australian lawyer by virtue of admission by the Supreme Court of a non-participating jurisdiction is eligible, if otherwise qualified, to be granted an Australian practising certificate under Part 3.3. Among other matters, this Schedule contains provisions relating to practising certificates granted in a non-participating jurisdiction.

1 Definitions

In this Schedule--

"lawyer" , when used alone, has the same meaning as it has in Chapter 5 (see section 261);

"non-participant legal practitioner" means a person who is the holder of a current non-participant practising certificate but who is not the holder of a current Australian practising certificate granted in a participating jurisdiction;

"non-participant practising certificate" means a practising certificate granted to an Australian lawyer under the law of a non-participating jurisdiction and authorising the Australian lawyer to engage in legal practice in that jurisdiction;

"non-participant registered foreign lawyer" means a person who is registered as a foreign lawyer under a law of a non-participating jurisdiction but who is not the holder of a current Australian registration certificate granted in a participating jurisdiction.

Part 2 - Application of this law in relation to non-participant legal practitioners

2 Practising certificate granted in non-participating jurisdiction

(1) In the application of this Law to a non-participant practising certificate and to a non-participant legal practitioner, this Law applies with the following modifications--
(a) Parts 3.3, 3.5, 3.6 and 9.3 of this Law do not apply--
(i) except to the extent, if any, specified in the Uniform Rules; and
(ii) with the exception of section 49;
(b) any provisions of this Law specified in the Uniform Rules for the purposes of this clause do not apply (except to the extent, if any, specified in the Uniform Rules);
(c) any other modifications specified in the Uniform Rules and any necessary modifications.
(2) Provisions of the Uniform Rules specified in the Uniform Rules for the purposes of this clause do not apply (except to the extent, if any, specified in the Uniform Rules) to a non-participant practising certificate and a non-participant legal practitioner.

3 Extent of entitlement to practise in this jurisdiction

(1) This Law does not authorise a non-participant legal practitioner to engage in legal practice in this jurisdiction to a greater extent than an Australian legal practitioner could be authorised under an Australian practising certificate granted in a participating jurisdiction.
(2) Also, a non-participant legal practitioner's right to engage in legal practice in this jurisdiction--
(a) is subject to any conditions imposed under clause 4 or by the Uniform Rules; and
(b) is, to the greatest practicable extent and with all necessary changes--
(i) the same as the practitioner's right to engage in legal practice in the practitioner's home jurisdiction; and
(ii) subject to any condition on the practitioner's right to engage in legal practice in that jurisdiction, including any conditions imposed on his or her admission to the legal profession in this or another jurisdiction.
(3) If there is an inconsistency between conditions mentioned in subclause (2)(a) and conditions mentioned in subclause (2)(b), the conditions that are, in the opinion of the designated local regulatory authority, more onerous prevail to the extent of the inconsistency.
(4) A person who is an Australian lawyer by virtue of admission by the Supreme Court of a non-participating jurisdiction must not engage in legal practice in this jurisdiction in a manner not authorised by this Law or in contravention of any condition referred to in this clause.

4 Additional conditions on practice of non-participant legal practitioner

(1) The designated local regulatory authority may, by written notice to a non-participant legal practitioner engaged in legal practice in this jurisdiction, impose any condition on the practitioner's practice that it may impose under this Law on an Australian practising certificate granted in this jurisdiction.
(2) Also, a non-participant legal practitioner's right to engage in legal practice in this jurisdiction is subject to any condition imposed by or under the Uniform Rules.
(3) Conditions imposed under or referred to in this clause must not be more onerous than conditions applying to Australian legal practitioners who are holders of current Australian practising certificates granted in this jurisdiction.
(4) A non-participant legal practitioner must not contravene a condition imposed under this clause.

5 Non-participant legal practitioner expecting to practise solely or principally in this jurisdiction

(1) A non-participant 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 of an Australian practising certificate under Part 3.3 of this Law as applied in this jurisdiction in respect of the following financial year.
(2) Subclause (1) does not apply to a non-participant legal practitioner who applied for the grant or renewal of a non-participant 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.
(3) The exemption provided by subclause (2) ceases to operate at the end of the period specified in the Uniform Rules for the purposes of this subclause.

6 Home jurisdiction of non-participant legal practitioner

For the purposes of this Law, the home jurisdiction of a non-participant legal practitioner is the non-participating jurisdiction in which the practitioner's practising certificate was granted.

Part 3 - Application of this law in relation to non-participant registered foreign lawyers

7 Registration in non-participating jurisdiction

(1) In the application of this Law to registration as a foreign lawyer granted in a non-participating jurisdiction and to a non-participant registered foreign lawyer, this Law applies with the following modifications--
(a) Parts 3.4, 3.5, 3.6 and 9.3 of this Law do not apply (except to the extent, if any, specified in the Uniform Rules);
(b) any provisions of this Law specified in the Uniform Rules for the purposes of this clause do not apply (except to the extent, if any, specified in the Uniform Rules);
(c) any other modifications specified in the Uniform Rules and any necessary modifications.
(2) Provisions of the Uniform Rules specified in the Uniform Rules for the purposes of this clause do not apply (except to the extent, if any, specified in the Uniform Rules) to registration as a foreign lawyer in a non-participating jurisdiction or to a non-participant registered foreign lawyer.

8 Extent of entitlement to practise in this jurisdiction

(1) This Law does not authorise a non-participant registered foreign lawyer to practise foreign law in this jurisdiction to a greater extent than an Australian-registered foreign lawyer could be authorised under an Australian registration certificate granted in a participating jurisdiction.
(2) Also, a non-participant registered foreign lawyer's right to engage in legal practice in this jurisdiction--
(a) is subject to any conditions imposed under clause 9 or by the Uniform Rules; and
(b) is, to the greatest practicable extent and with all necessary changes--
(i) the same as the foreign lawyer's right to practise foreign law in the foreign lawyer's home jurisdiction; and
(ii) subject to any condition on the foreign lawyer's right to practise foreign law in that jurisdiction, including (if relevant) any conditions imposed on his or her admission to the legal profession in this or another jurisdiction.
(3) If there is an inconsistency between conditions mentioned in subclause (2)(a) and conditions mentioned in subclause (2)(b), the conditions that are, in the opinion of the designated local regulatory authority, more onerous prevail to the extent of the inconsistency.
(4) A non-participant registered foreign lawyer must not practise foreign law in this jurisdiction in a manner not authorised by this Law or in contravention of any condition referred to in this clause.

9 Additional conditions on practice of non-participant registered foreign lawyer

(1) The designated local regulatory authority may, by written notice to a non-participant registered foreign lawyer practising foreign law in this jurisdiction, impose any condition on the foreign lawyer's practice that it may impose under this Law on an Australian registration certificate granted in this jurisdiction.
(2) Also, a non-participant registered foreign lawyer's right to engage in legal practice in this jurisdiction is subject to any condition imposed by or under the Uniform Rules.
(3) Conditions imposed under or referred to in this clause must not be more onerous than conditions applying in the same or similar circumstances to Australian-registered foreign lawyers who are holders of current Australian registration certificates granted in this jurisdiction.
(4) A non-participant registered foreign lawyer must not contravene a condition imposed under this clause.

10 Non-participant registered foreign lawyer expecting to practise solely or principally in this jurisdiction

(1) A non-participant registered foreign lawyer who--
(a) practises foreign law solely or principally in this jurisdiction during a financial year; and
(b) reasonably expects to practise foreign law solely or principally in this jurisdiction in the following financial year--
must apply for the grant of an Australian registration certificate under Part 3.4 of this Law as applied in this jurisdiction in respect of the following financial year.
(2) Subclause (1) does not apply to a non-participant registered foreign lawyer who applied for the grant or renewal of registration as a foreign lawyer in a non-participating jurisdiction on the basis that the foreign lawyer reasonably expected to practise foreign law solely or principally in this jurisdiction under an arrangement that is of a temporary nature.
(3) The exemption provided by subclause (2) ceases to operate at the end of the period specified in the Uniform Rules for the purposes of this subclause.
(4) This clause does not affect the right of a foreign lawyer under section 60 to practise foreign law in this jurisdiction without having to hold a current Australian registration certificate during a limited period.

11 Home jurisdiction of non-participant registered foreign lawyer

For the purposes of this Law, the home jurisdiction of a non-participant registered foreign lawyer is the non-participating jurisdiction in which the foreign lawyer's registration as a foreign lawyer was granted.

Part 4 - Dispute resolution and professional discipline

12 Non-application of Chapter 5 to certain conduct of lawyer occurring within non-participating jurisdiction or outside Australia

(1) Chapter 5 as applied in this jurisdiction does not apply to--
(a) conduct of a lawyer that has occurred within a non-participating jurisdiction, unless consent is given as referred to in subclause (2); or
(b) conduct of a non-participant legal practitioner or non-participant registered foreign lawyer to the extent that the conduct has occurred outside Australia, unless--
(i) the conduct is part of a course of conduct that has occurred within a participating jurisdiction; or
(ii) the conduct is part of a course of conduct that has occurred within a non-participating jurisdiction and consent is given as referred to in subclause (2).
(2) For the purposes of subclause (1), consent is given in relation to conduct of a lawyer that has occurred within a non-participating jurisdiction if--
(a) the lawyer was admitted to the Australian legal profession by the Supreme Court of a participating jurisdiction or was at the relevant time the holder of an Australian practising certificate, or Australian registration certificate, granted in a participating jurisdiction; and
(b) either--
(i) the corresponding authority of the non-participating jurisdiction consents to the conduct being dealt with under this Law as applied in this jurisdiction; or
(ii) the complainant and the lawyer consent to the conduct being dealt with under this Law as applied in this jurisdiction.

13 Non-application of Chapter 5 to certain conduct of law practice occurring within non-participating jurisdiction or outside Australia

(1) Chapter 5 as applied in this jurisdiction does not apply to--
(a) conduct of a law practice to the extent the conduct has occurred within a non-participating jurisdiction, unless consent is given under subclause (2); or
(b) conduct of a law practice to the extent the conduct has occurred outside Australia, unless--
(i) the conduct is part of a course of conduct that has occurred within a participating jurisdiction; or
(ii) the conduct is part of a course of conduct that has occurred within a non-participating jurisdiction and consent is given under subclause (2).
(2) For the purposes of subclause (1), consent is given in relation to conduct of a law practice occurring within a non-participating jurisdiction if either--
(a) the corresponding authority of the non-participating jurisdiction consents to the conduct being dealt with under this Law as applied in this jurisdiction; or
(b) the complainant and the law practice consent to the conduct being dealt with under this Law as applied in this jurisdiction.

14 Non-application of Chapter 5 to certain conduct occurring within participating jurisdiction or outside Australia

(1) Chapter 5 as applied in this jurisdiction does not apply to conduct of a lawyer or law practice that has occurred within this jurisdiction (and any conduct that has occurred outside Australia that is part of a course of conduct that has occurred within this jurisdiction) if--
(a) the conduct is part of a course of conduct that occurred partly in a non-participating jurisdiction; and
(b) either--
(i) the designated local regulatory authority consents to the conduct being dealt with under a corresponding law; or
(ii) the complainant and the lawyer or law practice consent to the conduct being dealt with under a corresponding law.
(2) Subclause (1) does not apply if the conduct is not capable of being dealt with under the corresponding law.
(3) The designated local regulatory authority may give consent for the purposes of subclause (1)(b)(i), and may do so conditionally or unconditionally.

Part 5 - Miscellaneous

15 Fidelity funds and fidelity authorities for non-participating jurisdiction

For the purposes of this Law--

(a) the fidelity fund of a non-participating jurisdiction is the fund (however described) established or maintained under a law of that jurisdiction to provide a source of compensation for defaults by law practices; and
(b) the fidelity authority for a non-participating jurisdiction is the authority responsible for the general administration of the fidelity fund (as referred to in paragraph (a)) of that jurisdiction.

16 Uniform Rules

(1) The Uniform Rules may make provision with respect to any aspect of the application of this Law in relation to non-participating jurisdictions (including non-participant legal practitioners and non-participant registered foreign lawyers).
(2) Without limitation, the Uniform Rules may make provision with respect to the notification of persons or bodies having functions under a law of a non-participating jurisdiction about actions or other things done under this Law.

17 Disclosure of information

A relevant person within the meaning of section 439 may disclose information obtained in the administration of this Law or the Uniform Rules to a person or body in a non-participating jurisdiction in relation to a function of that person or body under a corresponding law.



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