Practising certificates for legal officers employed in New South Wales are to be renewed in the immediate future.

In past years, the grant of a practising certificate by the NSW Law Society has entitled the holder to membership of the Society. One fee was charged to cover both the practising certificate and membership of the Society.

As a result of recent reforms, membership of the Society is now voluntary and membership is distinct from the issue of the practising certificate (which remains compulsory in order to practise law). Separate fees are now payable for the practising certificate, and for voluntary membership.

The Bar Association also provides for voluntary membership which is separate from the grant of a practising certificate.

Departments and agencies should continue to pay for the cost of the practising certificate in accordance with Chapter 5-2.13 of the Personnel Handbook.

It should be recognised, however, that many of the benefits that attach to membership of the Law Society are personal to the individual concerned. Therefore, as a general rule departments and agencies are not required to meet the costs of membership of the Law Society.

There may be instances, however, where membership of the Law Society will also benefit the department or agency concerned or membership is necessary for an individual officer to perform his or her duties. Department heads should consider such requests on their merits.

When determining whether to pay a staff member's membership, department heads should consider relevant policies and procedures in the department or agency, such as staff development and whether the department or agency pays voluntary membership subscriptions for other professional or industrial organisations.

Relevant factors that could be considered include whether:

• staff members have a genuine need to access precedents and ethics advice provided by the Law Society in order to perform their work;
• membership is necessary for a staff member to maintain specialist accreditation (which is necessary for the staff member to perform his or her duties), or where such accreditation is of substantial benefit to the department or agency;
• there is a need for the department or agency to maintain a relationship with the Law Society through staff memberships;
• membership will provide access to continuing legal education provided by the Law Society which is relevant to the staff member or the department or agency and is otherwise unavailable or is only available at an overall higher cost;
• membership of the Law Society will allow for participation in committees of the Society which would benefit the department or agency as a whole.

In some cases, it may be appropriate for department heads to issue an approval in respect of the department or agency as a whole. Department heads would need to satisfy themselves that it is necessary for the proper conduct of the department or agency for all employed legal officers to be members of the Law Society. In such case, the reasons for this decision should be clearly documented.

This guideline may also be relevant for determining whether voluntary membership fees associated with the Bar Association should be paid for.

Where the membership is paid for in accordance with these guidelines on the basis it is relevant to the staff member's position or essential for the organisation, then no fringe benefit tax is payable.

Col Gellatly
Director-General

This Circular has not superseded any other Circular.