Over time, however, New Zealand has developed its own statute and case law which diverges from English law in several important respects. The development of New Zealand case law has been heavily influenced by decisions from higher courts in other common law jurisdictions, including England, Australia and Canada.As a colony of the British Empire, New Zealand inherited its common law jurisdiction from Great Britain. Its legal system is therefore based on the doctrine of precedent and the development of legal principles through cases and judgments.
The English Law Acts of 1854, 1858 and 1908 confirm New Zealand as a common law country.
|2. EDUCATION2.1 University education|
In New Zealand, a pre-requisite to admission to the practice of law is completion of a law degree (LLB) at one of the five New Zealand universities with law faculties (University of Auckland, University of Waikato, Victoria University of Wellington,University of Canterbury, University of Otago, and AUT University).
The LLB is a four-year (eight-semester) degree which may be studied full-time or part-time, and can typically be studied in combination with other degrees (ie, Arts, Commerce or Science).
In addition to several key compulsory LLB subjects (Legal System, Contract, Torts, Public Law, Criminal Law and Property Law), students seeking to become admitted must complete the Legal Ethics unit provided by the university at which they are studying.
|2.2 Practical legal training|
The New Zealand Counsel of Legal Education (NZCLE) requires that, in addition to having the appropriate academic qualification, New Zealand lawyers complete practical legal training. This is to ensure that future lawyers develop the necessary practical legal skills to draft legal documents, interview clients, negotiate on behalf of clients, and carry out numerous other practical assignments that are an essential part of the work of most lawyers.
In New Zealand, practical legal training can be completed in two different ways:
- by undertaking articles of clerkship; or
- by completing the Professional Legal Studies Course (at either the Institute of Professional Legal Studies or the College of Law New Zealand).
|2.2.1 Articles of clerkship|
‘Articles of clerkship’ is a term used to describe a type of apprenticeship/traineeship by which law graduates work as ‘articled clerks’ for a firm or sole practitioner for a set period of time (typically 12 months). Articled clerks are ‘articled to’ a specific lawyer (the articled clerk’s ‘principal’) for the duration of their clerkship. This is the traditional system of gaining practical legal experience.
Two of the key benefits of being an articled clerk are having the opportunity to work in legal practice and being paid for it. These reasons make articles the preferred and most sought-after form of practical legal training for most law graduates looking to qualify in New Zealand. The application process for articled clerkship positions is extremely competitive. Applications are usually made in the penultimate year of studies for the following year.
Vacation or seasonal clerkships are typically undertaken by law students in their third or penultimate year of study. These two to four week placements are done during either the winter or summer holidays of the university semester, and have becoming increasingly important to law students looking to secure an articled clerkship position.
|2.2.2 The Professional Legal Studies Course|
The Professional Legal Studies Course (PLSC) is a competency-based skills training programme that prepares trainee lawyers with the skills and knowledge required for practice in New Zealand, irrespective of the area of law in which they will be engaged.
To undertake the PLSC, applicants must have been conferred with, or be eligible to be conferred with, an LLB or LLB Honours degree.
The Institute of Professional Legal Studies offers the course in two formats:
- onsite: a 13 week course, onsite full time; and
- online: a 19 week course, online for 15.5 weeks and onsite for 3.5 weeks.
Alternatively, graduates can complete the PLSC through the College of Law New Zealand where the PLSC is 18 weeks long, taught in two nine-week modules. Some law firms also provide in-house training through the College of Law New Zealand.
Upon successfully completing the PLSC, graduates can apply for admission.
The admission and enrolment of barristers and solicitors in New Zealand is governed by Part 3 of the Lawyers and Conveyancers Act 2006 (LCA) and the LCA (Lawyers: Admission) Rules 2008 (Admission Rules). In short, it involves satisfying a three-step process discussed further below.
|3.1 Certificate of Completion|
Upon completion of an LLB and the PLSC, graduates must apply for a Certificate of Completion from the NZCLE.
Before the NZCLE can issue a Certificate of Completion, it requires the following documentary evidence:
- the Completion Certificate Application Form;
- a transcript from the university in which the applicant’s LLB was completed;
- a transcript from the university verifying that the applicant has passed Legal Ethics;
- a certificate of completion of the PLSC issued by the Institute of Professional Legal Studies or the College of Law New Zealand;
- a certified copy of the first two pages of the applicant’s passport; and
- a cheque of NZ$46.00, payable to the NZCLE.
A letter of acknowledgment will be sent to applicants upon receipt of the above documents. Certificates of Completion can be expected to be issued within 20 working days from the date of the letter of acknowledgment.
A Certificate of Completion is valid for three years.
|3.2 Certifcate of Character|
The second aspect of admission involves obtaining a Certificate of Character from the New Zealand Law Society (NZLS).
The purpose behind the Certificate of Character is to certify whether an applicant is considered a fit and proper person to be admitted.
Generally, applicants should start the process three months ahead of the date of the proposed admission ceremony. Applicants who need to make disclosures to the NZLS (ie, convictions) should start the process four months ahead of the proposed admission ceremony.
Applicants can apply to any Law Society branch of their choice, but must provide the following documentation as part of their application:
- the completed application form;
- three referee reports (one employer reference and two general character references. If the applicant is not employed, three general character references are required). Note that referees must send the original reports and associated documents directly to the relevant Law Society branch;
- a certified copy of the page of the applicant’s passport with their photograph and personal details;
- a statutory declaration confirming that the applicant is the person referred to by the various names used in the supporting documents (see the NZLS’s guidelines on statutory declarations for further details);
- a curriculum vitae outlining the applicant’s employment history; and
- a cheque of NZ$189.75, payable to the NZLS.
Upon receipt of the Certificate of Character, the applicant should file it, along with the other relevant admission documents, with the High Court of New Zealand.
If a branch refuses to issue the Certificate of Character, it will refer the application to the national office to be considered by the Fitness for Practice Committee.
|3.3 Admission to the High Court of New Zealand|
An application for admission must be filed in the High Court of New Zealand and include:
- an originating application drafted by the lawyer moving the applicant’s admission (using form LA 1 of the Schedule to Admission Rules);
- an affidavit in support sworn by the applicant (using form LA 2 for New Zealand LLB holders); and
- the required filing fee, payable to the New Zealand High Court.
The affidavit in support must attach the following:
- a Certificate of Completion or a copy of the refusal by the NZCLE to issue this;
- a Certificate of Character or other response from the NZLS to the applicant’s application; and
- a copy of the receipt for the fee payable to the NZLS for the application for a Certificate of Character (NZ$189.75).
It is suggested that applicants seek to have the order for admission sealed and to hold a copy for possible future use (using form LA 5).
|3.4 Practising certificate|
The final requirement to practice as a lawyer in New Zealand is obtaining a practising certificate from the NZLS. A lawyer can hold a practising certificate as either a barrister and solicitor or a barrister. Strictly speaking, all lawyers who have been admitted to practice in New Zealand are both a barrister and a solicitor. However, in practice, most lawyers will work either as a barrister or a solicitor.
Practising certificates are issued by the NZLS for the year 1 July to 30 June.
Applicants are eligible to hold a practising certificate if:
- their name is on the roll;
- they are considered a fit and proper person to hold a practising certificate;
- they have paid the required fees;
- they do not hold, nor have they applied to hold, a practising certificate as a conveyancing practitioner; and
- they meet the eligibility criteria set out in Regulation 4 of the LCA (Lawyers: Practice Rules) Regulations 2008.
Applications may be referred to the NZLS Fitness for Practice Committee if the NZLS is aware of concerns regarding an applicant or an applicant has disclosed information that may reflect on his/her eligibility to hold a practising certificate.
Applicants who have been refused a practising certificate have a right of appeal to the Disciplinary Tribunal.
|4. REQUALIFICATION4.1 Requalification for foreign lawyers|
Foreign or overseas lawyers can practice in New Zealand without being admitted, provided they do not hold themselves out as New Zealand solicitors or barristers.
Foreign solicitors wishing to re-qualify in New Zealand will need to apply to the NZCLE for assessment of their qualifications and experience before applying to be admitted. The purpose of this is to assess the ‘academic fitness’ of the applicant to practice law in New Zealand. The assessment process compares the applicant’s knowledge and skills to those required of a New Zealand graduate seeking admission.
The NZCLE must also be satisfied that the applicant has knowledge of the law and the practice of law in New Zealand to a sufficient degree to be able to appropriately advise clients.
(a) Degree equivalence
Applicants seeking to re-qualify in New Zealand must firstly demonstrate degree equivalence. That is, an applicant must show that he or she has completed the equivalent of the New Zealand four-year LLB. Where an applicant’s degree is not, in terms of length and content, broadly equivalent to the New Zealand law degree, the applicant may have to sit New Zealand university degree courses to broaden their legal understanding.
(b) Subject equivalence
Applicants must also demonstrate subject equivalence. The content of the units covered in their LLB must broadly correspond to the content of the compulsory NZCLE LLB subjects: Legal System, Contract, Torts, Public Law, Criminal Law and Property Law.
Applicants who have not completed units corresponding with these subjects will usually have to undertake the relevant subject at a New Zealand university law school. If an applicant is credited with having undertaken equivalent core subjects, he or she will still need to sit the equivalent part of the New Zealand Law and Practice Examination (NZLPE).
The NZLPE tests overseas applicants on distinct features of New Zealand law. It consists of a six-part written exam following a comprehensive self-taught prescription. It is held bi-annually over four days and covers the compulsory NZCLE LLB subjects referred to above. Each part consists of one written 90-minute exam.
From March 2011, the NZLPE can only be sat at a New Zealand university law school or at one approved venue in London.
Information packs on the NZLPE are available by email: email@example.com
(c) Legal ethics
In addition to the above core subjects, applicants must have completed a course in legal ethics and professional responsibility, or have sufficient relevant post-admission experience to obviate the Legal Ethics requirement.
(d) Professional training and experience
The NZCLE will assess the scope of any practical training that the applicant may have completed, or any post-admission experience. The applicant must be able to show that he or she has undertaken a similar skills based training course to that required in New Zealand, or that he or she has sufficient post-admission experience to compensate for not being able to fulfil this requirement.
The NZCLE has made it clear that pre-admission experience will not be considered when assessing this component of an application, as pre-admission experience by New Zealand law graduates does not exempt them from the PLSC.
(e) English language competency
The NZCLE will rely on an applicant’s application documents (see 4.1.2 below) and the language medium in which the applicant was trained to establish the applicant’s proficiency in English. Applicants who cannot demonstrate proficiency may be required to pass an International English Language Test.
|4.1.2 Application and supporting documentation|
In assessing a foreign lawyer’s qualifications and experience, the NZCLE requires the following:
- a curriculum vitae outlining educational background, qualifications and relevant work experience (particularly legal work experience);
- documentary evidence of all tertiary qualifications, including academic transcripts;
- a copy of the law school handbook or similar publication showing the structure of the LLB and the length of each course undertaken during the applicant’s period of study. If no such handbook is available, a copy of the title page showing the degree structure and course prescription should be included with a cover letter from the Dean of the Law Faculty stating that the relevant course was in force throughout the study period of the applicant;
- supporting evidence of work experience in the form of letters or references on original firm letterhead signed by the supervising partner or manager for those applicants relying on professional experience;
- documentary evidence of admission to practice as a solicitor or barrister in the first country of admission. This must be in the form of an original practising certificate or a certified copy showing the date and place of admission;
- an original certificate of good standing from the relevant professional or registration admission body confirming:
- the date of admission;
- that the applicant is of good character and repute;
- that there are no past or pending proceedings against the applicant for professional or other misconduct; and
- whether or not the applicant is entitled to practice, with reasons;
- certified copies of practising licences, including a current practising licence;
- relevant post-admission experience, including the length and nature of the experience;
- the basis of any exemption claimed from the requirement to demonstrate English language proficiency;
- a statutory declaration or affidavit certifying the identity, the accuracy and the completeness of the above information; and
- a cheque. There are different fees for non-admitted and admitted applicants. See the NZCLE Assessment of Overseas Law Qualifications Information Brochure for further fee details.
A foreign applicant may be required to complete some or all of the subjects for a New Zealand law degree and/or the PLSC to show proficiency in English.
Applicants must also complete the application form in Schedule 1 of the NZCLE Assessment of Overseas Law Qualifications Information Brochure, and may attach a covering letter if so desired.
Applications typically take three months to be processed.
|4.1.3 Relevant certificates and admission to the High Court of New Zealand|
Once overseas applicants have completed the qualifications prescribed by the NZCLE, they must apply to the NZCLE for a Certificate of Completion (see 3.1 above) and the NZLS for a Certificate of Character (see 3.2 above).
Applications for admission must then be filed in the High Court of New Zealand and include:
- an originating application drafted by the lawyer moving their admission (using form LA 1 of the Schedule to Admission Rules);
- an affidavit in support sworn by the foreign applicant (using form LA 3); and
- the required filing fee, payable to the New Zealand High Court.
|4.2 Requalification for New Zealand LLB holders admitted overseas|
Applicants holding a New Zealand LLB who have been admitted overseas do not have to apply under the full overseas admission system described at 4.1 above. Rather, such applicants must apply to the NZCLE to have their individual case assessed. This involves an analysis of the practical legal training courses undertaken by the applicant and the applicant’s post-admission experience.
Applicants who fall within this category are not required to submit an application form, but must provide:
- a covering letter;
- an original or certified copy of their admission showing where and when he or she was admitted;
- an original certificate of good standing;
- certified copies of practising certificates;
- original work references and other documentary evidence of post-admission experience;
- an original or certified copy of his or her New Zealand degree certificate;
- an original academic transcript;
- a certified copy of their passport or drivers licence;
- a statutory declaration or affidavit verifying identity;
- a statement authorising the NZCLE or its agent to verify qualifications; and
- a cheque of NZ$600, payable to the NZCLE.
|4.3 Requalification for Australian-qualified lawyers|
The Trans-Tasman Mutual Recognition Act 1997 (TTMRA) allows Australian-qualified solicitors and barristers to apply for automatic admission in New Zealand by following a two-step process.
|4.3.1 Admission by the High Court of New Zealand|
First, Australian lawyers or barristers must apply to the High Court of New Zealand for admission as both a barrister and solicitor. As discussed at 3.4 above, as in Australia, it is not possible to be admitted only as a barrister or only as a solicitor in New Zealand (though lawyers will hold a practising certificate either as a barrister or as a barrister and solicitor – see 3.4 above and 4.3.2 below).
Australian-qualified lawyers and barristers must apply to one of the 19 High Court registries in New Zealand and file:
- a notice in duplicate to the Registrar as required under section 19 of the TTMRA;
- an affidavit in support of notice;
- originating application for admission (using form LA 4 of the Schedule to Admission Rules); and
- a cheque of NZ$100, payable to the High Court of New Zealand (using form LA 5).
The NZCLE provides precedents of the notice in duplicate and the affidavit in support of notice.
|4.3.2 Application for practising certificate|
Once admitted, the second step requires applying to the NZLS for a practising certificate. This must be for an ‘equivalent occupation’ to that which is practiced in Australia (see Schedule 3 of the TTMRA Regulations 2008 for a chart of equivalency of occupations).
The application must include:
- a completed application for a practising certificate;
- a certified copy of the order for admission in New Zealand;
- the original or certified copy of the applicant’s current Australian practising certificate;
- the original certificate of standing, less than three months old, from the relevant regulator (typically a law society or bar association) in each Australian jurisdiction in which the applicant holds a current practising certificate; and
- the relevant practising fees and levies. As noted at 3.4 above, the New Zealand practising year runs from 1 July to 30 June.
Upon submitting the above application, applicants are deemed to be registered and are entitled to practice the ‘equivalent occupation’ (ie, as a barrister or as a barrister and solicitor), pending the NZLS’s decision.
The deemed registration will cease if the NZLS cancels or suspends it, or if the applicant ceases holding a current practising certificate in the Australian jurisdiction(s) in which he or she is admitted.
The NZLS determines all applications based on the documentation provided. It may make further inquiries but must, within one month, decide whether to grant, conditionally grant, postpone (for up to six months) or refuse to grant a practising certificate.
All applicants will receive notice of the decision in writing. If an application is refused or postponed, reasons will be provided and the refused applicant will be entitled to apply to the Trans-Tasman Occupations Tribunal for a review of the NZLS’s decision.
Australian-qualified solicitors and barristers who are successfully admitted do not have to sit additional examinations and are able to work in New Zealand without visas or work permits.
|5. OTHER POINTS|
All lawyers practising in New Zealand, whether they are deemed to be registered or whether they hold a New Zealand practising certificate, are subject to the LCA and the regulations and rules made under it.
To practice as or to call yourself a New Zealand lawyer, you must:
- Step 1: complete an LLB approved by the NZCLE. Overseas law graduates, or those who have been admitted in another jurisdiction (other than Australia), may be required to complete further New Zealand university subjects and/or parts of the NZLPE;
- Step 2: complete the PLSC at either the Institute of Professional Legal Studies or the College of Law New Zealand. Alternatively, undertake an articled clerkship. Foreign lawyers may be exempted from sitting the PLSC once their qualifications and experience have been assessed by the NZCLE;
- Step 3: obtain a Certificate of Completion from the NZCLE;
- Step 4: obtain a Certificate of Character from the NZLS;
- Step 5: be admitted to the roll of barristers and solicitors of the High Court of New Zealand; and
- Step 6: hold a current practising certificate issued by the NZLS.
|7. SOURCES AND REFERENCES|
- Dr Steven Tudor and Catherine O’Mahony, La Trobe Law Short Guide to Becoming a Lawyer (2007) La Trobe University <http://www.latrobe.edu.au/lawman/currentstudents/assets/downloads/law/law-guide-becoming-lawyer.pdf> at 18 May 2011.
- Fiona Crichton, The New Zealand Legal System Auckland District Law Society <http://www.adls.org.nz/information-for-public/legal-system> at 14 May 2011.
- Guidelines for Admission to Legal Practice Requirements in Australia and Internationally (2006) Law Faculty, The University of Melbourne <website link unavailable> at 17 May 2011.
- New Zealand Lawyers & Conveyancers Disciplinary Tribunal <http://www.justice.govt.nz/tribunals/lawyers-and-conveyancers-disciplinary-tribunal>.
- New Zealand Law Society <http://www.lawsociety.org.nz/home/for_lawyers/regulatory/admissions>.
- New Zealand Counsel of Legal Education <http://www.nzcle.org.nz/>.
- Institute of Professional Legal Studies <http://www.ipls.org.nz/>.
- College of Law New Zealand <http://www.collaw.edu.au/Future-Students/Professional-Legal-Studies-Course-New-Zealand/>.
- Trans-Tasman Occupations Tribunal <http://www.justice.govt.nz/tribunals/trans-tasman-occupations-tribunal>.
Disclaimer: While the information in this guide is accurate at the time of publication (June 2011), users should confirm its accuracy for themselves and should not rely on it as their sole source of information and advice.
Written by Katharine McPherson1