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Barriers to Services Exports – Productivity Commission Issues Paper

The Law Council of Australia provided a submission to the Productivity Commission in response to an Issues Paper on Barriers to Export Services.

Australia’s regulation of legal services

Australia’s regulation of legal services Australia provides reasonably liberal terms of market access for foreign suppliers of legal services in the Australian market.

Australia provides access on terms under which:

  1.  a distinction is made between the:
     
    1. supply of legal services relating to Australian (host) country law for which foreigners must meet the same requirements as nationals to obtain a full practising certificate; and
    2. supply of legal services relating to foreign country law for which foreigners are not required to obtain a full practising certificate and are subject to a less onerous registration requirement;
       
  2. there are no quantitative limitations, either in numerical form or in any form of economic needs test, on the number of suppliers or the number of foreign suppliers that may supply any kind of legal service on host country law or on the number of suppliers that may supply any kind of legal service on foreign country law. Neither are there any quantitative restrictions on the value of legal service transactions or assets, legal service operations or service output, or the total number of employees or the number of employees any supplier may employ;
     
  3. foreign suppliers of foreign country law do not have to satisfy residency requirements to supply legal services relating to home country or third country law:
     
    1. on a “fly in/fly out” basis; or
    2. through a commercial presence in Australia;
       
  4. foreign suppliers of foreign country law can supply legal services relating to home country or third country law on a “fly in/fly out” basis for up to 90 days per year without:
     
    1. having to obtain an Australian practising certificate; or
    2. having to register as a registered foreign lawyer in Australia;
       
  5. foreign suppliers of foreign country law can supply legal services relating to foreign country law by establishing a commercial presence in Australia if they are registered as a registered foreign lawyer in Australia; and
     
  6. suppliers of legal services relating to foreign country law may (except in South Australia) operate in partnership or other profit sharing arrangement with local lawyers provided that those qualified in foreign country law or a particular foreign country supply legal services relating to foreign country law of that country and only those holding Australian practising certificates supply legal services related to Australian (host) country law.

It is the Law Council’s submission that Australia should seek commitments from other countries that would require them to provide terms of access that equal or reflect most of the major characteristics of the market access terms that Australia provides to non-nationals.

The Law Council has supported Australia seeking such liberalization in multilateral negotiations in the World Trade Organisation, in plurilateral negotiations, and in bilateral negotiations. Although the practical position may be that liberalization may be achieved earlier in bilateral or plurilateral negotiations, the Law Council would still like to see as many members of the World Trade Organization as possible support our approach to liberalization with a distinction between regulation of the practise of home country law and regulation of foreign or international law.

The Law Council would like to see bilateral and plurilateral negotiations reach an outcome of more general support for this position in multilateral negotiations in the WTO. To this end, it has previously requested the Australian government to request in non-WTO negotiations that potential FTA partners endorse Australia’s proposals in the WTO (eg. See Law Council submission on the Proposed Australia-China FTA).

Read the full submission below.

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