Exemption Policy

REQUESTS FOR EXEMPTION FROM/WAIVER OF THE REQUIREMENT TO UNDERTAKE THE BAR EXAMS, BAR PRACTICE COURSE AND/OR READING PROGRAM

See also the Returning to the Bar Policy

Introduction

  1. The Bar Council is the relevant designated local regulatory authority under the Legal Profession Uniform Law (NSW) (Uniform Law) in respect of the grant, renewal (and imposition of discretionary conditions) on barristers’ practising certificates in NSW.
  2. Section 44(1) of the Uniform Law gives the Bar Council power to grant or renew practising certificates to or for persons to practise as barristers in New South Wales.
  3. A pre-requisite to the grant or renewal of a practising certificate is, (inter alia), the Bar Council’s satisfaction that the applicant is a fit and proper person to hold a practising certificate (Uniform Law, s45(2)).
  4. In considering whether a person is a fit and proper person, the Bar Council may have regard to the matters specified in the Legal Profession Uniform General Rules 2015 (NSW) (Uniform Rules), pursuant to s45(3), Uniform Law.
  5. However, the Bar Council may consider a person to be a fit and proper person to hold a practising certificate even though the person does not satisfy the requirements identified in the matters to which the Bar Council may have regard in the Uniform Rules, if it is satisfied this is warranted in all the circumstances (Uniform Law, s45(4)).

General requirements

  1. Persons intending to commence practice at the New South Wales Bar are generally required to sit (and pass to the required standard) an examination set by the New South Wales Bar Association (Bar Exam) in order to obtain a practising certificate. This requirement arises from s45(2) and (3) of the Uniform Law and Rule 13 of the Uniform Rules.
  2. Pursuant to s50 of the Uniform Law, it is a statutory condition of a practising certificate issued to persons commencing practice at the NSW Bar that the person attend and complete to a satisfactory standard the Bar Practice Course (BPC) and a reading program for 12 months under the supervision of one or more tutors (Reading Program).
  3. Further information concerning the Bar Exam and BPC can be found in the Bar Examination Policy and the Bar Practice Course Policy respectively.

Requests for exemption/waiver and who can deal with them

  1. From time-to-time persons intending to commence practice at the NSW Bar apply for total or partial exemption from (or waiver of) the requirements to sit and pass the Bar Exam and/or to complete the BPC and/or to complete the Reading Program (exemption/waiver requests).
  2. The Bar Council (or any validly appointed delegate) has the power to grant a total or partial exemption from, or waiver of, the requirement to sit and pass the Bar Exam (under s50(4) of the Uniform Law), the requirement to complete the BPC and/or the requirement to complete Reading Program (under s50(4) and (5) of the Uniform Law).

Returning to the Bar Policy

  1. The Returning to the Bar Policy addresses circumstances in which (and the conditions on which) persons who are intending to recommence practice at the NSW Bar and have not held a practising certificate for two years or less, may be exempted from the requirements to sit and pass the Bar Exam and/or complete the BPC and/or Reading Program.

Purpose and scope of this Policy

  1. The purpose of this Policy is to set out the approach to be taken by the Bar Council to requests for exemption/waiver in circumstances where automatic exemption is not provided for or available under the Returning to the Bar Policy, including:
    (i) overseas practitioners, (ii) Crown Prosecutors or Public Defenders wishing to practise at the private Bar in NSW who have not previously sat and passed the NSW Bar Exam, completed the BPC and/or completed the Reading Program, and (iii) persons who are returning to the Bar and more than two years have elapsed since the expiry of their last barrister’s practising certificate whether held in NSW or another Australian jurisdiction.
  2. This Policy does not apply to Crown Prosecutors or Public Defenders who previously practised at and are returning to the private bar.

Procedure for making exemption/waiver requests

  1. Exemption/waiver requests should be made in writing, addressed to the Executive Director, and copied to the Certification Officer of the NSW Bar Association and submitted in conjunction with the application for an Australian practising certificate. Applications for a practising certificate must be made on the relevant form which is reviewed annually and can be found on the NSW Bar Association’s website.
  2. There is no prescribed form for making an exemption/waiver request. However, persons making such a request should specify whether they are seeking exemption from sitting the Bar Exams, and/or completing the BPC and/or completing the Reading Program, and provide any supporting material and reasons they believe will assist the Bar Council in deciding whether or not to approve the exemption/waiver request.
  3. The Bar Council will endeavour to determine exemption/waiver requests within 90 days of receipt of the practising certificate application.

Bar Council’s approach to determining exemption/waiver requests

  1. The Bar Council attaches significant weight to the requirements that all persons intending to commence practice at the bar in NSW should sit and pass the Bar Exam, complete the BPC and the Reading Program.
  2. The Bar Exam, the BPC and the Reading Program have been designed and refined by the NSW Bar Association over decades for the benefit of persons commencing practice at the NSW Bar, their prospective clients, the courts and the wider community. They are designed to ensure that persons commencing practice at the NSW Bar have the knowledge, skills, diligence and ethical qualities necessary to enable them to practice as a barrister. They provide a program and a facility by which persons commencing at the NSW Bar have the support and supervision of one or more experienced barristers in their first year of practice, and provide links with other barristers and the wider legal community. They are also designed to assure prospective clients, courts and the wider community that persons commencing practice at the NSW Bar have the necessary level of competence and professional ethics to justify being entitled to practice as a barrister and enjoy the privileges and immunities attendant on that practice.
  3. As a result, requests for exemption from or waiver of those requirements are likely to be approved by Bar Council (or its delegate) only rarely, and in compelling circumstances.
  4. The Bar Council (or its delegate) may grant an exemption from (or waiver of) the whole or a part of the requirement that a person intending to commence practice at the NSW Bar sit and pass the Bar Exam, complete the BPC and/or complete the Reading Program when it is satisfied that it is appropriate to permit the applicant to commence practice at the NSW Bar notwithstanding that they have not sat and passed the Bar Exam, completed the BPC and/or completed the Reading Program.
  5. In deciding whether it is appropriate to permit an applicant to commence practice at the NSW Bar notwithstanding that they have not sat and passed the Bar Exam, completed the BPC and/or completed the Reading Program, the Bar Council (or its delegate) may have regard to the following criteria:
    1. the previous study, training or experience, or other relevant personal circumstances, of the applicant;
    2. the objects of the requirement that persons commencing practice at the NSW Bar sit and pass the Bar Exam and complete the BPC and the Reading Program;
    3. whether, having regard to:
      1. the previous study, training and experience, or relevant personal circumstances, of the applicant; and
      2. the objects sought to be achieved by the Bar Exam, the BPC and the Reading Program, requiring the applicant to sit and pass the Bar Exam and/or complete the BPC and/or the Reading Program is unnecessary, inappropriate or unduly onerous.
  6. A refusal by the Bar Council (or its delegate) of an exemption/waiver request is not to be interpreted as an adverse reflection on the applicant or on the nature or quality of their previous study, training or experience.
  7. In deciding whether or not to approve an exemption/waiver request, the Bar Council (or its delegate) may seek and obtain the views of the Education Committee of the NSW Bar Association on the merits of the request.