Legal Exclusions: Émigré Lawyers, Admissions to Legal Practice and the Cultural Transformation of the Australian Legal Profession

Published date01 September 2021
Date01 September 2021
DOI10.1177/0067205X211016574
Subject MatterArticles
2021, Vol. 49(3) 327 –351
Article
Legal Exclusions: ´
Emigr´
e
Lawyers, Admissions to Legal
Practice and the Cultural
Transformation of the
Australian Legal Profession
Sara Dehm*
Abstract
Legal histories of Australia have largely overlooked the exclusion of European ´
emigr´
e lawyers
from legal practice in Australia. This article recovers part of this forgotten history by tracing
the drawn-out legal admission bids of two Jewish ´
emigr´
e lawyers in the mid-20th century:
German-born Rudolf Kahn and Austrian-born Edward Korten. In examining their legal lives and
doctrinal legacies, this article demonstrates the changing role and requirement of British sub-
jecthood in the historical constitution and slow cultural transformation of the Australian legal
profession. Thi s article suggests that contempor ary efforts t promoting cultur al diversity in the
Australian legal profession are enriched by paying attention to this long and difficult history of
legal exclusions.
I Introduction
Cultural diversity within the Australian legal profession has rightly become a growing concern. In
2018, the NSW Bar Association initiated a survey of its members for the first time to better
understand the Bar’s demographic composition. Whilst the survey results indicated an emergent
cultural, linguistic and gender diversity among practising barristers in NSW, they also starkly
demonstrated that the NSW Bar ‘remains a long way from being representative of the state’s
population as a whole’.
1
Similar earlier surveys of the Victorian Bar and the Australian legal
* Senior Lecturer, Faculty of Law, University of Technology Sydney. This article stems from a shared project with
Katherine Biber and Ana Vrdoljak on European ´
emigr´
es’ impact on Australian jurisprudence. I am indebted to them
both for their input and advice. I also thank Ann Genovese, Anthea Vogl, Cait Storr, Eloise Chandler, Ben Silverstein
and the two anonymous reviewers for their helpful feedback. All errors remain my own. The author may be
contacted at sara.d ehm@uts.edu.au.
1. Ingmar Taylor and Chris Winslow, ‘Data on Diversity: The 2018 Survey’ (Autumn 2019) Bar News: The Journal of the
NSW Bar Association 39.
Federal Law Review
ªThe Author(s) 2021
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328 Federal Law Review 49(3)
profession on a national level have produced comparable data that points to an enduring lack of
cultural diversity.
2
Taken together, this data invites an inquiry into the historical, legal and insti-
tutional factors that have resulted in an overwhelmingly culturally homogenous legal profession to
date in Australia.
This article sheds light on one specific but critical barrier that acted as a significant and long-
standing legal exclusion mechanism against ´emigr´e lawyers migrating to Australia from outside of
the British Empire. This barrier is the requirement that candidates for admission to legal practice
needed to be British subjects. This requirement was first imported from England and applied by
Australian colonial superior courts from their inceptions in the early to mid-19th century. Yet,
unlike in England where so-called ‘alien’ lawyers were adm itted to legal practice from 1868
onwards, this requirement of British subjecthood remained in place in all Australian states until
the mid-1970s. This requirement was first removed in 1975 in South Australia, and as late as 1978
in Victoria. To date, this requirement of British subjecthood has received very little scholarly
attention. Yet, as this article demonstrates, this requirement had vital implications for the ability of
non-British ´emigr´e lawyers to practice in Australia. In particular, it became a key mechanism of
professional exclusion in the aftermath of World War II as European migration to Australia
significantly increased through state-assisted European settler migration schemes that saw the
progressive dismantling of the notorious White Australia policy by 1973.
This article demonstrates the significance of this requirement through the case studies of two
Jewish ´emigr´e lawyers who sought admission to practice in the late 1930s and early 1940s in
Victoria and NSW respectively: German-born Dr Rudolf Kahn and Austrian-born Dr Edward
(Eduard) Korten. Both men were highly qualified and experienced lawyers, who had practiced
in jurisdictions anning London, Berlin, Vienna and Shanghai. Both men arrived in
Australia with their immediate families within two months of each other, in November 1938
and Jan uary 193 9 respe ctively. Bo th had esc aped the N azi persec ution of Je ws in Germ any
and occupied Austria, including Nazi laws disqualifying them from legal practice and stripping
them of their citizenship. Both men applied for legal admission soon after arriving in Australia, but
both were refused a practicing certificate by the respective legal admission bodies on the basis that
neither man was a British subject. Both men appealed these decisions to the Australian High Court,
and in each instance, the High Court effectively upheld the power of the state legal admissions
body to refuse to admit so-called ‘aliens’.
3
Whilst both Kahn and Korten would eventually gain admission to legal practice in 1940 and
1944 respectively following their naturalisations, recovering and recalling their stories illustrates
three things in particular. First, it highlights the racial ‘gatekeeper’ function played by statutory
bodies such as the Council of Legal Education in Victoria and judicial entities such as the
Barristers’ Admission Board in NSW in a very concrete way, and vividly shows the personal costs
that such legal discriminations and exclusions had on two individual ´emigr´e lawyers. Second, it
2. See The State of the Victorian Bar: Performance, Challenges, and Opportunities (Web Page, March 2018) https://
www.vicbar.com.au/sites/default/files/The%20State%20of%20the%20Victorian%20Bar%20report.pdf>; Asian
Australian Lawyers Asso ciation, ‘The Australian Legal P rofession: A Snapshot of Asian Aust ralian Diversity in
2015’ (Web Page, 14 April 2014) http://www.aala.org.au/resources/Documents/AALA%20Report%20Final.pdf>.
3. Kahn v The Board of Examiners (Vic) (1939) 62 CLR 422, 428 (Latham CJ) (‘Kahn’); Transcript of Proceedings,
‘Korten Eduard versus The Council of the Bar Association of New South Wales [on Appeal from the New South Wales
Supreme Court—Admission to the Bar of New South Wales]’ (1942–1943), (NAA: Series No A10071, Control Symbol
1942/2, Item Barcode 8351267) (‘Korten’).
2Federal Law Review XX(X)
sp

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