The case for reform of legal

requalification in New Zealand

Richard Best *

Key message

The key message in what follows is that New Zealand’s requalification

requirements for overseas common law lawyers, and the processes
surrounding them, are outdated, unreasonable and in need of review. This
is the respectful view not only of the author, but of many others in the
profession, including certain employers, the Corporate Lawyers
Association of New Zealand and overseas lawyers who have experienced or
are contemplating requalifying here.

Full reasons for this view are set out in a longer version of this
article which can be found online at:[ ]. The purpose of this shorter
version is to provide busy practitioners, employers and officials with a
quick overview of the key issues. The comments that follow are made with
the greatest of respect to the distinguished membership of the Council
of Legal Education (“ C LE ” ) and New Zealand Law Society ( “ NZLS ” ) and
are intended to be constructive.

Privileged

New Zealand lawyers are privileged. They can and do practise in most
Australian states without having to undergo any requalification
examinations and they can be admitted and practise in England & Wales
upon passing only the Professional Conduct and Accounts head of the four
part Qualified Lawyers Transfer Test, being exempt from all other heads.

The simplicity around practising in Australia is thanks to the Trans

Tasman Mutual Recognition regime, while practising in England is
straight-forward thanks to that country’s recognition that our legal
system is a common law, Westminster system based upon their own. The
English approach is pragmatic, recognises that it is general common law
knowledge and skill sets rather than the minutiae of specific cases and
statutes that matters, and reflects and facilitates both the increasing
internationalisation in the practice of law and the increasing cross-
border mobility of lawyers.
*
The author is admitted to the High Court of New Zealand, the Supreme
Court of England & Wales (now non-practising), and was a Registered Foreign
Lawyer in Frankfurt, Germany. He is also a CLANZ Committee member. CLANZ
supports this article and the need for reform. While the author has spoken
with a number of the stakeholders identified above in preparing this article,
responsibility for any errors rests with him alone and the views expressed are
in no way intended to portray the views of any employer of the author, past or
present.

1
Disadvantaged

Given our legal system’s English roots and the way we are treated in the
UK, one might expect reciprocity for UK solicitors and barristers
wishing to practise here. One might expect the kind of pragmatism
underlying the regime that opens our doors to Australian lawyers.

Not so. UK qualified and admitted lawyers are required to undergo a

costly application process which suffers from a lack of transparency and
is in parts simply confusing, following which they are usually required
to undertake most if not all parts of the New Zealand Law and Practice
Examination ( “ NZLPE” ) , namely, Legal System (essentially Public Law),
Contract Law, Criminal Law, Property Law, Torts and Equity.

This is so notwithstanding that for most if not all of these subjects

they will usually be found to have undertaken courses in their home
country that “ adequately correspond ” with those subjects, for which
they obtain “ credits ” (in the absence of obtaining credits, applicants
are usually required to undertake those courses at a New Zealand
university). The rationale for having, nevertheless, to undertake
intensive preparation for examination in and to pass these subjects, the
examinable bounds of which exceed the already overweight course
prescriptions, is “ to test the applicant’s knowledge of the New Zealand
law in these areas and in particular the distinct features of New
Zealand law ” . The same applies for, among others, Canadian lawyers,
notwithstanding (in most provinces) their common law tradition.

Procedural criticisms

A number of procedurally-oriented criticisms can be made of the

application and assessment processes of CLE and NZLS, whose statutory
framework and application and assessment processes are described at
length in the longer version of this article.

Overseas admitted lawyers wishing to requalify in New Zealand are faced

with two sets of instructions, one on the NZLS website, the other in
CLE’s Information Brochure available on its website. Those instructions
are substantially similar but not the same. With respect, this is
confusing for applicants and somewhat duplicative.

Specific areas of difference between the two sets of instructions

concern to whom applications for assessment are to be made, different
documentary requirements, fees and refunds, and differences in whether
the NZLPE is the absolute minimum requirement for overseas admitted
applicants.

2
Substantive criticisms

More important than these essentially process-oriented issues, however,

are the substantive problems of the current requalification regime. In
summary, they concern:

ƒ insufficient transparency as to what is required of overseas admitted

lawyers wishing to requalify in New Zealand and the stark lack of
reciprocity between, for example, the New Zealand and English
requalification regimes;

ƒ the potential loss to the profession of the international experience

and perspectives of overseas admitted lawyers who may simply, and
understandably, see requalification in New Zealand as an imprudent
choice given the onerous requalification requirements;

ƒ the Trans Tasman Mutual Recognition regime and the unmistakable

disjunct between entry requirements for Australian lawyers and the
requalification requirements for other overseas common law lawyers;

ƒ the incongruence between Australian requalification requirements for

overseas common law lawyers and the New Zealand requalification
requirements for such lawyers, and the implications of that
incongruence;

ƒ peculiarities around the current rules regarding the obtaining of

credits, on the one hand, and NZLPE requirements, on the other;

ƒ the high threshold for exemptions from the NZLPE, the bloated nature
of the NZLPE course prescriptions and the unreasonable scope of
material and subject-matter on which applicants may be examined; and

ƒ the costs for applicants as against the absence of tuition and the
lack of complete course materials.

Reform

The author suggests there is more than sufficient reason for CLE and
NZLS to take a close and collaborative look at the sense and fairness of
the hurdles placed before most overseas common law lawyers wishing to
requalify in New Zealand. It is the author’s real belief that it is in
the interests of the profession, and New Zealand’s standing in the
international legal community, to do so, and that it is far preferable
for CLE, in conjunction with the NZLS, CLANZ and other interested
parties, to initiate change than to await the potential alternatives.

3
4