find the latest legal job
Senior Associate - Litigation & Dispute Resolution
Category: Litigation and Dispute Resolution | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· Come work for a firm ranked in Lawyers Weekly Top 25 Attraction Firms
View details
Associate - Workplace Relations & Safety
Category: Industrial Relations and Employment Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Employer of choice · Strong team culture
View details
Freelance Lawyers
Category: Banking and Finance Law | Location: All Perth WA
· Freelance opportunities through Vario from Pinsent Masons
View details
Freelance Lawyers
Category: Other | Location: All Adelaide SA
· • Qualified lawyer with a strong academic background
View details
Freelance Lawyers
Category: Other | Location: All Melbourne VIC
· • Qualified lawyer with a strong academic background
View details
Lawyers exempt from ASIC licensing

Lawyers exempt from ASIC licensing

THE ROLLERCOASTER ride for lawyers and their responsibilities under the Financial Services Reform Act 2001(FSRA) seemed to be continuing last week with the release of an update on the progress…

THE ROLLERCOASTER ride for lawyers and their responsibilities under the Financial Services Reform Act 2001(FSRA) seemed to be continuing last week with the release of an update on the progress of Australian financial services (AFS) licence applications.

However, the war has been fought and won and as the deadline for licences approaches this March, many lawyers will be able to consider themselves exempt.

Last week’s update by the Australian Securities and Investments Commission (ASIC) warned financial advisers to obtain a licence by the 10 March 2004 deadline. After this date, a person who operates a financial business must hold an AFS licence. That includes those who provide financial product advice, deal in a financial product, make a market for a financial product, operate as a registered scheme and provide custodial or depository services.

Speaking to Lawyers Weekly, Law Council of Australia president Bob Gotterson QC explained that lawyers only managed to gain an exemption from the licences last month after extensive lobbying from the Council. Still, he warned lawyers to be aware of where the regime applies and where it does not.

Exemptions brought about by Law Council lobbying in 2001 meant that some legal advice was not considered financial product advice. This included any advice given by a lawyer in the ordinary course of their professional activities, as well as advice given in a lawyer’s professional capacity about matters of law, legal interpretation and the application of the law.

“We were pleased to see ... that there was an exemption from the licensing regime for giving advice by a lawyer in their professional capacity,” Gotterson said. “So the giving of legal advice isn’t caught by the licensing requirements.”

Additional requests to ASIC and the Federal Treasury by the Law Council in December last year saw further exemptions for lawyers. The Council had been concerned at the number of instances where lawyers’ ordinary activities amounted to the provision of a financial service.

As a result, additional exemptions were made to the FSRA’s dealing and custodial and depository services provisions. “The result is that advice and work that lawyers do in the ordinary course of legal practice will be exempted from the financial services regime,” Gotterson said.

“The Law Council, through our business law section, lobbied to make a regulation which excepts from the licensing regime any financial dealing which is done in the ordinary course of legal practice,” he added.

The Law Council’s success has saved many lawyers and firms enormous additional cost as licence fees were likely to be between $200-300 per practitioner per year.

Gotterson stressed that lawyers would still have to ensure they were covered by the exemptions and that the licensing regime did not apply to them. Referring to his own comments about the current exemptions, he added that “one has to warn lawyers that that is a general statement of the situation and a careful study of the exempting provisions and regulations always needs to be undertaken where other activities are involved”.

The Law Council wants to assist in this process and is currently working on an information kit that will be available online.

“[The kit would] give guidance as to where the regime applies and where it does not. We’re hoping to have that done and have it available to the legal profession electronically as soon as we can,” Gotterson said.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Lawyers exempt from ASIC licensing
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Oct 23 2017
How to fail well
The legal profession is due for an attitude adjustment when it comes to perceived failures, accordin...
Oct 23 2017
Lawyers slam rushed consultation for SA repeat offenders bill
The Law Society of South Australia has expressed concern for a proposal to roll out new laws amendin...
Oct 23 2017
The pursuit of happiness in the law
A panel of legal experts have explored how to define success in the legal profession, and how lawyer...
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...