To begin this discussion regarding the judicial bodies governing the practice of law in Australia, we must first understand the geographic delineation of Australia and its effect in the development of its legal practice system.
Being one the world’s major continents, Australia consists of six states with their own judicial body. These states are as follows:
- New South Wales
- South Australia
- Western Australia
Apart from these major states, Australia also has three federal states and seven territories located outside the mainland.
The implication of these political and geographic boundaries in terms of judicial practice is inevitable because of the individualistic nature of its composition. Also, in order to exercise its autonomy, it is predictable for every separate state to implement their own rules and regulations for the welfare of their territory.
The need for a solid governing body across the six states was not realized until 1934, after years of debate between the different practicing authorities of Australia. Consequently, the Law Council of Australia was established as agreed upon by the following bodies - Law Institute of Victoria, the Law institute of New South Wales, Law Society of South Australia, Queensland Law Society, Northern and Southern Law Societies in Tasmania. This consolidation of judicial practice for the six major states also applies to the ten territories outside mainland boundaries as stipulated by the Constitution of the country.
To date, there are eight Constituents of the Law Council of Australia allowed to represent the legal bodies nationally in order to control the practice and preserve the integrity of the Australian Constitutional Law.
Due to the unification of the practice, there is no concept of “foreign practice” when you go across boundaries from where your license is acquired. Being a foreign practitioner does not mean your litigation capabilities is limited and cannot be fully exercised. Since this scenario is inevitable, the Australian Constitutional Law prescribed procedures for interstate practitioners who want to practice their profession outside their judicial boundary. This rule reinforces the unified law system and allows the inter-state practitioners cross jurisdiction without conflict of interest.
However, “foreign practice” only applies for overseas acquired license. The Australian Constitutional Law, also referred to as the Priestley Committee, requires the practitioner to complete a short course in a duly recognized University that covers the eleven basic principles of Australian Constitutional Law.
As per the Constitution, there is a standard set of skills used to gauge the practitioner’s readiness to become a full-pledged lawyer. These can be covered in the undergraduate programs offered by accredited universities and gathered over time and experience through internship programs across the country.
Here are the eleven basic areas of the Australian Constitution, more commonly referred to as the “Priestley 11.”
- Criminal Law and Procedure, basically covers the definition and elements of crime, as well as the general doctrines applicable for both offense and defense. This also includes homicide and defenses, non-fatal offences against a person, offences against property, as wells as their classifications, procedure, trial, and bail.
- Torts, or tortfeasor, studies the legal aspects of negligence whether intentional or accidental and its equivalent compensation schemes. This includes understanding the very definition and range of possible cases it covers, the damages entailed, and concurred liabilities.
- Contracts cover the legalities and content of a contract such as its limitations, considerations, capacity, and formality.
- Property covers the basic definition and concept of property. It discusses the manner of real estate acquisition, sale, and documentation governing ownership, as well as the nature and types of property interest. It also discusses the legalities of concurrent ownership, proprietary interests and mortgages.
- Equity discusses the very nature of its definition and how it applies to equitable rights and interests, obligations, unacceptable transactions, and equitable remedies. This area also includes trust law and its various types in relation to their manner of creation and variation, implementation, and consequences in the case of breach of contract.
- Company Law covers the representation of the corporate personality as an individual entity that can enter into contract. It also covers the different facets of company liability to its directors, officers, and members. It studies the incorporation process and establishment of the corporate constitution and its administration of companies, as well as its financial obligations and security.
- Administrative Law covers the common laws of the land and the theories governing it. Its focal point is the discussion of organization and structure of the administration, grounds of judicial reviews, remedies, crown immunity, appeals, statutory review, and freedom of information.
- Federal and State Constitutional Law covers the Commonwealth Constitution and the constitutional system it reinforces. It discusses the relationship between the various government institutions and their individual capabilities as ruling bodies in their respective department.
- Civil Procedure, as the name implies, covers the study of litigation, its procedure and its consequent costs and manner of control. It breaks down litigation into the services from where it originates, the claimants and parties involved, defining questions for trial, possible disposition sans the trial thru out of court settlement, extra-judicial cases determination, judgment, appeal, and enforcement.
- Evidence covers the thorough discussion of the materials presented to corroborate or debunk a judicial case. It establishes the parameters of competence and compellability when presenting evidence, examination of witnesses relative to the procedure, assessment of disposition and character, standards of proof, documentation, legalities of its acquisition and the possibility of predetermined judgment and presentation of opinionated evidence.
- Ethics and Professional Responsibility, in general, is the professional and personal conduct with respect to the law, the courts, the clients, and to other practitioners.
As of October 2014, the national census recorded a total number of 66,211 practicing solicitors in Australia. Statistics shows that the state with the leading number of practitioners is New South Wales with 41.6% registered solicitors followed by Victoria with 24.5%, and Queensland with 15.7%.