Line 4 · Legal work
Can a business consultant draft my contracts?
The rule: in each state this guide draws on, legal practice is reserved to qualified people, and the crossing for a consultant is a contract’s terms. The Victorian Legal Services Board and Commissioner lists, among common examples of activities that could be considered to be unqualified legal practice if done by an individual without a current practising certificate, writing and/or giving verbal advice on ‘transactional’ documents that may not involve going to court (for example, drafting, or advising on the terms of, a contract, will, settlement agreement, etc.).
This guide draws the rule from Victoria, New South Wales, Queensland and Western Australia, and names no others. It answers what counts as legal practice, the four answers that do not change it, who may give limited legal services, and when to bring in a legal practitioner. It does not say whether your own arrangement crosses the line.
Any adviser
Licensed, registered, or a director
- 1 TaxApplies tax law to your own circumstances, and you rely on it, for a feeTax agent or BAS agent, registered with the Tax Practitioners Board
- 2 Financial productsRecommends which financial product to buy: shares, super and insurance among themAFS licensee, or an authorised representative of one
- 3 CreditSuggests or assists with a specific contract from a specific credit providerCredit licensee, or a credit representative of one
- 4 Legal workAdvises on, or drafts, the terms of a contractAustralian legal practitioner, holding a current practising certificate
- 5 The companyThe directors are accustomed to act in accordance with the adviser’s instructions or wishesA director in law, with no appointment needed
General information about how Australian law treats business advice. It is not tax, financial or legal advice. Check an adviser on the official register, where a line names one.
What counts as legal practice
Victoria states the offence at its widest: engaging in unqualified legal practice, or falsely claiming that you are qualified, is a criminal offence in Victoria. In Victoria, the Board says only qualified individuals and registered legal practices can engage in legal practice or represent that they are qualified to.
The Board’s definitions are specific. An individual is ‘qualified’ if they are an Australian legal practitioner, which means they hold a current practising certificate issued in any Australian state or territory; an individual is ‘unqualified’ if they don’t have a current Australian practising certificate, even if they have formal legal training or a law degree. A business is ‘unqualified’ if it is not a registered law practice in any Australian State or Territory.
The work the Board names as legal practice: some common examples of activities that could be considered to be unqualified legal practice if done by an individual without a current practising certificate include giving legal advice (verbally or in writing) about another person’s legal affairs, and writing and/or giving verbal advice on ‘transactional’ documents that may not involve going to court.
Four things that do not excuse it
Victoria’s reading, attributed to it: the Board says a person may still be engaging in unqualified legal practice even if they provide the above services for free, they only provide the above services once, the advice they give is accurate or the document they prepare is well drafted, or they tell you they are unqualified. Free, once, accurate or disclosed makes no difference on the Board’s reading.
The offence reaches claims as well as work. The Board says a person may also commit an offence in Victoria if they advertise, represent, state or imply to others that they can provide legal services when they are not qualified to do so. The Board adds that it is also an offence to falsely claim that a business that you have a close relationship with (for example, as director or employee) is a business that can engage in legal practice when it is not registered.
The consequences the Board states: engaging in unqualified legal practice has a maximum penalty of up to two years’ imprisonment and/or a fine, and representing an entitlement to engage in legal practice while you are unqualified has a maximum penalty of a fine.
Who may give limited legal services
Some Australian laws allow individuals who may not be legal practitioners to provide limited legal services. The Board names these individuals as including, but not limited to, registered conveyancers, accountants, migration agents, and trademarks or patent attorneys.
The limits on them come with the permission: even though those individuals may be able to provide limited legal services, they cannot advertise themselves as legal practitioners if they do not hold a current Australian practising certificate, and they also cannot advertise or represent that their business is a law practice if the business is also not registered as a law practice.
The rule in each state this guide draws on
How to read the table below: four states, four sets of words. Each row keeps the words of the source that states the rule there. The rule for South Australia, Tasmania, the Australian Capital Territory and the Northern Territory is not stated on the official pages linked here, so this guide names none of them.
| What the rule says | Where it is written | |
|---|---|---|
| Victoria | Among common examples of activities that could be considered to be unqualified legal practice if done by an individual without a current practising certificate, the Victorian Legal Services Board and Commissioner lists writing and/or giving verbal advice on ‘transactional’ documents that may not involve going to court (for example, drafting, or advising on the terms of, a contract, will, settlement agreement, etc.). | Victorian Legal Services Board and Commissioner: Unqualified legal practice |
| New South Wales | The Law Society of NSW states that practice by unqualified entities is prohibited in New South Wales by section 10 of the Uniform Law, and that advertising or representing an entitlement to engage in legal practice while unqualified is prohibited by section 11. | |
| Queensland | The Queensland Act states that a person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner, and that a person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner. | |
| Western Australia | The Uniform Law as WA applies it states that an entity must not engage in legal practice in this jurisdiction unless it is a qualified entity. An entity is not entitled to recover any amount, and must repay any amount received, in respect of anything the entity did in contravention of that, and any amount so received may be recovered as a debt by the person who paid it. |
When to bring in a legal practitioner
Two pages point to a lawyer at the same place, where a document carries the business’s risk. Business Queensland says you can use a contract template but it should still be reviewed by a legal professional. business.gov.au’s advice is to check with an industry association, union or lawyer to make sure any contracts follow the relevant laws.
If money has already changed hands, the Board has a pointer of its own: if you paid an unqualified person for services, you should speak to an Australian legal practitioner for advice.
And if a contract dispute is running, the ACCC’s sequence ends the same way: if you can’t resolve the dispute through other options, you should consider seeking independent legal advice, and the law society in your state or territory can provide information about getting legal advice and refer you to a lawyer.