Disclosing Lawyers: Questioning Law and Process in the Admission of Australian Lawyers
| Author | Francesca Bartlett,Linda Haller |
| Date | 01 June 2013 |
| Published date | 01 June 2013 |
| DOI | 10.22145/flr.41.2.2 |
| Subject Matter | Article |
DISCLOSING LAWYERS: QUESTIONING LAW AND
PROCESS IN THE ADMISSION OF AUSTRALIAN LAWYERS
Francesca Bartlett* and Linda Haller**
ABSTRACT
Australian lawyers are assessed and ad mitted to practise at a state and territory level.
An important part of that assessment is an applicant's 'suitability' for professional
practise; also referred to as the 'character test' of personal morality. This test requires
applicants for admission to disclose relevant information about themselves including
past conduct and (in at least one state) mental health status. Ve ry little information
about the process of admission is available. Around the country, we do not know how
the character test is currently administered, how many applicants reveal past co nduct,
and how many are refused admission.
This article focuses on the three largest jurisdictions of New South Wales, Victoria
and Queensland. It traces their varyi ng approaches to admission; from legislative
provision, court interpretation to administrative approach. It also examines some rare
data about disclosure pa tterns on applying for admission. The resulting analysis raises
concerns about a range of matters relating to admission to legal practice in Australia. It
is argued that the secrecy of process is unjustified; and there is lack of confidentiality,
certainty, and possib ly fairness, ensured for applicants, particularly w here issues of
mental health arise. Finally, it is argued that there is a great difference in law and
process between the states considered. While the ostensible goal of protection of the
public is the same, the approach is far from that.
INTRODUCTION
In each state and territory of Australia, anyone wanting to 'practise law' must be
admitted by their local Supreme Court and certified for practice in that jur isdiction.
1
_____________________________________________________________________________________
* Francesca Bartlett, Senior Lecturer, T.C. Beirne School of Law, The University of
Queensland;
** Linda Haller, Senior Lecturer, Melbourne Law School, University of Melbourne. The
authors would like to thank the anonymous referees for their helpful advice.
1
In each jurisdiction it is a criminal offence to 'engage in the practice of law' without these
two licences. See for instance, Legal Profession Act 2007 (Qld) s 24; Legal Profession Act 2004
(Vic) s 2.2.2(1); Legal Profession Act 2004 (NSW) s 14(1). However, an 'Australian legal
practitioner' — a person who is admitted and certified in one jurisdiction — can work in
228 Federal Law Review Volume 41
____________________________________________________________________________________
About 85 per cent of Australia's lawyers practice in New South Wales (NSW),
Victoria and Queensland.
2
These three jurisdictio ns joined with other Australian
jurisdictions to implement Model Laws which require similar, but not identical,
governing legislation i n this area.
3
However, as this article demonstrates, admissi on is
an area where a uniform approach has not, substantively, resulted.
In all jurisdictions, an applicant must demonstrate appropriate qualifications and
training ('eligibility' criteria )
4
as well as perso nal qualities so as to render the applicant
'fit and proper' for legal practice ('suitability' criteria).
5
The second element of 'suitability' involve s a deliberation by Supreme Courts
across the country as to whether each applicant displays the requisite moral 'character'
and capacity to practise la w, in order to be given access to the profession. As th ere is
little investigative power vested in Admissions Boards and courts, the process relies on
disclosures of past cond uct, and mental or phy sical ill-health, by applicants
themselves. While 'eligibility' is, for the most part, uniform across Australia,
6
the
second 'suitability' limb of the admission test is arguably diverse in both its process
and principle. In this article, we consider how the second limb — what we will call the
'character test' — is applied when determining applications for admission.
7
We argue
_____________________________________________________________________________________
another state or obtain a practising certificate in another jurisdiction as a matter of course
as part of the Travelling Practising Certificate Scheme, ie Legal Profession Act 2004 (Vic) s
2.4.32. See a description of lawyers' interstate mobility on the website of the NSW Office of
the Legal Services Commissioner, <http://www.olsc.nsw.gov.au/olsc/olsc_education
/lsc_ lawregulate/lsc_mobility.html>. See also their constitutional liberty as found in Street
v Queensland Bar Association (1989) 168 CLR 461.
2
Robert McClelland, 'National Legal Profession One Step Closer' (Media Release, 9
September 2011) < http://robertmcclelland.com.au/2011/09/09/national-legal-profession-
one-step-closer/>. The national report by law societies across the country confirms these
figures: As of October 2011, there were 59,280 practising solicitors in Australia. As reflected
in Table 1 and Figure 1 (for 2009) below, most solicitors are in New South Wales (41.4%),
followed by Victoria (27.7%) and Queensland (14.3%): The Law Society of New South
Wales, 2011 Law Society National Profile: Final Report (May 2 012)
<http://www.lawsociety.com.au/about/news/640587> 4.
3
Legal Profession Act 2004 (Vic); Legal Profession Act 2004 (NSW); Legal Profession Act 2007
(Qld).
4
Typically, this is by demonstrating completion of a complying law degree and practical
legal training or supervised workplace experience as defined in governing Acts: eg Legal
Profession Act 2007 (Qld) ss 30, 35; Supreme Court (Admission) Rules 2004 (Qld) rr 6-7, Part
2A, Attachment 1.
5
Legal Profession Act 2004 (NSW) ss 9 ('suitability' matters), 25; Legal Profession Act 2004 (Vic)
s 1.2.6; Legal Profession Act 2007 (Qld) ss 9, 30. Legal Profession Acts are uniform in this
requirement. However, as we will discuss further in Part 2.1, the listed matters prescribed
by legislation to be considered (when revealed by the applicant) vary. So too, we argue, the
common law tests across the jurisdictions we consider appear to provide a differing list, or
at least emphasis, as to what might render an applicant 'unfit' to practise.
6
Victoria and Queensland only recognise a Bachelor of Laws or Juris Doctor degree for
eligibility purposes. NSW also recognises its own Diploma in Law: Legal Profession
Admission Rules 2005 (NSW) reg 80.
7
For the most part of this article we refer exclusively to admission. However, in all
jurisdictions the test as to eligibility and suitability is applied at both admission and
certification stages. Nevertheless, in most jurisdictions, where a matter is disclosed,
2013 Questioning Law and Process in the Admission of Australian Lawyers 229
____________________________________________________________________________________
that diff erences in legislation, policy, practice and (possibly) culture have resulted in
significant jurisdictional discrepancies in many aspects of the admission process. For
instance, a rare snapshot into admissions across the country in 2009 revealed that
applicants for admission in Victoria were 17 times more likely to disclose matters than
their counterparts in NSW.
8
This and other discrepancies matter; not only for the
applicants involved, but also for the future of the profession. There is a lack of
certainty in the administrative process and the scope of the legal requirement for
disclosure. Given our federal system, lawyers may practise across the country
irrespective of where they have been admitted.
9
Thus, where one jurisdiction is
substantially out of line with other jurisdictions as to whom to ad mit, it is arguable that
the efficacy of the 'character test' — protecting the Australian public from bad lawyers
— is limited.
So too, if we hope to move toward a more national legal profession, we should be
aware of how each part of Australia approaches questions of character in the
admission process. We briefly consider the proposed legislative regime, Legal
Profession National Law (LPNL), soon to be intro duced in NSW and Victoria. In
particular, we point to proposed structura l changes (such as central bodies processing
admission applications and making policy)
10
which afford an opportunity to address
some of the concerns we raise about the 'character test'. If nothing e lse, the introduction
of the LPNL is likely to p rovide a more consolidated approach to admission i n NSW
and Victoria next year. We argue that it might also provide applica nts with further
guarantees of confidentiality and due process. This is of particular concern, we argue,
for applicants who have a history of mental illness.
11
_____________________________________________________________________________________
considered and the applicant is admitted by the court, a certifying body cannot refuse to
issue a practising certificate on the same grounds. However, matters relevant to a person's
fitness may come to light between admission and certification (ie timing of conduct or
failure to disclose). In such cases, the certifying authority clearly has power to refuse to
issue a certificate. We understand that such bodies would ask the person to inform the
Admission Board about the matter.
8
Law Admission Consultative Committee, Submission to Taskforce on National Legal
Profession Reform, 19 July 2010, 5, <http://www1.lawcouncil.asn.au/LACC/images/
pdfs/NationalLegalProfessionReform.pdf.> We discuss this in more detail in Part 5 below.
9
This was confirmed in Street v Queensland Bar Association (1989) 168 CLR 461 which found
that there would be a restriction of interstate trade and commerce to restrict the practice of
law. See above, n 1.
10
Attorney-General's Department, Legal Professional National Law (31 May 2011)
<http://www.ag.gov.au/Consultations/Documents/NationalLegalProfessionalReform/N
ational%20Legal%20Profession%20Legislation%20September%202011%20for%20web%20si
te.pdf>. We refer to the National Legal Services Board ('Board') to be established under this
Law, which will be located in NSW and w ill effectively have the function of deciding who
can practise law in all subject jurisdictions. The LPNL provides that the Board must assess
whether an applicant for admission is 'fit and proper' and issue a 'compliance certificate' if
so. An admitting court must not admit a person without this certificate: LPNL s 2.2.3.
However, it is rumoured that this aspect of the LPNL may not be adopted in the final form
of the laws and state courts will again have the sole admission power.
11
This is because such issues of capacity are considered as part of the 'character test' at
admission. This is discussed in Part 4.
To continue reading
Request your trial