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 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 2012) <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, 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/National%20Legal%20Profession%20Legislation%20September%202011%20for%20web%20site.pdf>. We refer to the National Legal Services Board ('Board’) to be established under this Law, which will be located in NSW and will 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.

¹² We borrow this terminology from Bauer, Jon, ‘The Character of the Questions and the Fitness of the Process: Mental Health, Bar Associations, and the Americans with Disabilities Act’ (2001) 49 UCLA Law Review 93.Google Scholar

¹³ This article forms the first stage of a larger project which involves collecting more data about the system including speaking to regulators and others involved in admission across the country. This further empirical research may provide new insights and suggest further, or different, avenues for reform.

¹⁴ For instance, the Legal Profession Act 2004 (NSW) s 9(1) states (abridged):

Each of the following is a suitability matter in relation to a natural person:

(a) whether the person is currently of good fame and character,

(b) whether the person is or has been an insolvent under administration,

(c) whether the person has been convicted of an offence in Australia or a foreign country, and if so:

(i) the nature of the offence, and

(ii) how long ago the offence was committed, and

(iii) the person's age when the offence was committed,

(d) whether the person engaged in legal practice in Australia:

(i) when not admitted, or not holding a practising certificate…, or

(ii) if admitted, in contravention of a condition on which admission was granted, or

(iii) if holding an Australian practising certificate, in contravention of a condition of the certificate…

(e) whether the person has practised law in a foreign country:

(i) when not permitted by or under a law of that country to do so, or

(ii) if permitted to do so, in contravention of a condition of the permission,

(f) whether the person is currently subject to an unresolved complaint, investigation, charge or order…

(g) whether the person:

(i) is the subject of current disciplinary action in another profession in Australia or a foreign country, or

(ii) has been the subject of disciplinary action relating to another profession that involved a finding of guilt,

(h) whether the person's name has been removed from:

(i) a local roll … or

(ii) an interstate roll …, or

(iii) a foreign roll,

(i) whether the person's right to engage in legal practice has at any time been suspended or cancelled in Australia or a foreign country,

(j) whether the person has contravened, in Australia or a foreign country, a law about trust money or trust accounts,

(k) whether … a supervisor, manager or receiver is or has been appointed in relation to any legal practice engaged in by the person,

(l) whether the person is or has been subject to an order … disqualifying the person from being employed by, or a partner of, an Australian legal practitioner or from managing a corporation that is an incorporated legal practice,

(m) whether the person is currently unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner.

We note that s 9(m) is not representative of the law in Victoria. Discussed in Part 4.

¹⁵ Health and teaching professions also have character tests. See for instance, Health Practitioner Regulation National Law (NSW) s 55 (unsuitability to hold general registration); Education and Training Reform Act 2006 (Vic) s 2.3.9(1) (not to be employed as a teacher if found guilty of a sexual offence). See Freckelton, Ian, ‘“Good Character” and the Regulation of Medical Practitioners’ (2008) 16 Journal of Legal Medicine 488.Google ScholarPubMed

¹⁶ Ex parte Lenehan (1948) 77 CLR 403, 426 (Rich J); Jackson (previously known as Subramanim) v Legal Practitioners’ Admission Board [2006] NSWSC 1338 [23].

¹⁷ In New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279, 284, the Court emphasised the maintenance of public trust and confidence in the legal profession goal of gatekeeping the profession.

¹⁸ Jackson (previously known as Subramanim) v Legal Practitioners’ Admission Board [2006] NSWSC 1338.

¹⁹ For instance, Chief Justice de Jersey stated in a disciplinary decision in Legal Services Commissioner v Hewlett [2008] 2 Qd R 292, 297: ‘One of the substantial obligations of a legal practitioner is to uphold the law, and to ensure the due application of the law in furthering his or her clients’ affairs. The practitioner's capacity and commitment in those regards will be thrown into question where the practitioner is himself or herself guilty of a substantial contravention of the law, knowingly and deliberately, and for his or her own financial advancement.’ See also Legal Services Board v McGrath (No 2)[2010] VSC 332, [14] in which it was stated that a serious offence is relevant to character as it goes to a practitioner's ‘willingness and ability to obey the law which is integral to the civic office which [practitioners] perform and the trust reposed in them to properly perform that function.'

²⁰ As the Court stated in Re AJG [2004] QCA 88, 3, there must be ‘integrity’ exhibited by lawyers ‘which engenders in the Court and in clients unquestioning confidence in the completely honest discharge of their professional commitments'. See also McMurdo J in Cohen v Legal Practitioners’ Admission Board (No.2) [2011] QCA 106 [12].

²¹ Dal Pont, Gino, ‘Ethics: Fit to Practice’ (2007) 81 Law Institute Journal 76.Google Scholar See for instance, the comments of the court in Cohen v Legal Practitioners Admission Board (2008) QCA 063 which concerned the fitness of a former company director. This is a listed suitability factor in Victorian legislation: Legal Profession Act 2004 (Vic) ss 2.4.26-2.4.27.

²² Haller, Linda, ‘Smoke and Mirrors: When Professional Discipline May Cause Harm’ (2005) 8 Legal Ethics 70, 75–7.CrossRefGoogle Scholar Note the changing attitude to barristers’ unpaid tax: New South Wales Bar Association v Hamman [1999] NSWCA 404; New South Wales Bar Association v Cummins [2001] NSWCA 284; New South Wales Bar Association v Somosi [2001] NSWCA 285; New South Wales Bar Association v Murphy [2002] NSWCA 138; Cameron v Bar Association of New South Wales [2002] NSWSC 191; Wardell v New South Wales Bar Association [2002] NSWSC 548 (3 July 2002); Legal Services Commissioner v Turner [2012] VSC 394.

²³ Dal Pont, Gino, Lawyers’ Professional Responsibility (Thompson Reuters, 2013), 40.Google Scholar

²⁴ Konigsberg v State Bar of California (1957) 353 US 252, 262–3 (Black J) (footnote omitted).

²⁵ See comments made by Moffit P in Re B (1981) 2 NSWLR 372; see also Re Julius [1941] St R Qd 247.

²⁶ Rhode, Deborah, ‘Moral Character as a Professional Credential’ (1985) 94 Yale Law Journal 491.CrossRefGoogle Scholar We concede that not all academic commentary is critical of the character test. For a more positive view of the test, see Rourke, Melissa and Schoenfeld, Meredith, ‘The Honesty Standard and the Need for a More Stringent Standard: An Update on Model Rule 8.1’ (2001) 15 Georgetown Journal of Legal Ethics 895.Google Scholar

²⁷ Swisher, Keith, ‘The Troubling Rise of the Legal Profession's Good Moral Character’ (2008) 82 St John's Law Review 1037.Google Scholar

²⁸ Woolley, Alice, ‘Tending the Bar: The “Good Character” Requirement for Law Society Admission’ (2007) 30 Dalhousie Law Journal 27.Google Scholar She continued her critique of the character test in Woolley, Alice and Stacey, Jocelyn, ‘The Psychology of Good Character: the Past, Present and Future of Good Character Regulation in Canada’ in Tranter, Kieran et al (eds), Reaffirming Legal Ethics (Routledge, 2010).Google Scholar

²⁹ Rhode, above n 26. It should also be noted that the character test might be discriminatory, directly or in effect, in a range of ways. Rhode documents how the test excluded women and Jewish applicants in the US. In Australia, Dolman found that many Indigenous law students were ‘concerned or very concerned’ about this test for reasons which do not appear to relate to their ability to function as a lawyer: Dolman, Kevin, ‘Indigenous Lawyers: Success or Sacrifice?’ (1997) 4 Indigenous Law Bulletin 5.Google Scholar The adversarial nature of the oral hearings conducted by Examination Boards may also be questioned. Simon, Smith and Negowetti argue that there is a requirement to show ‘remorse’ for misdeeds which goes beyond any genuine educative function or requirement for ethical insight: Simon, Mitchell, Smith, Nick, Negowetti, Nicole, ‘Apologies and Fitness to Practice Law: a Practical Framework for Evaluating Remorse in the Bar Admission Process’ (2012) Journal of the Professional Lawyer 37.Google Scholar

³⁰ Rhode, above n 26, 513.

³¹ Ibid 515.

³² Ibid 517–18.

³³ For more detailed treatments of the underlying theory, see articles cited in above nn 26–28. See also discussion of the character test generally in Alice Woolley, ‘Legal Ethics and Regulatory Legitimacy: Regulating Lawyers for Personal Misconduct’ and Webb, Duncan, ‘Nefarious Conduct and the “Fit and Proper Person” Test', both in Bartlett, Francesca et al (eds), Alternative Perspectives on Lawyers and Legal Ethics (Routledge, 2011)Google Scholar; Mortensen, Reid, ‘The Lawyer as Parent: Sympathy, Care and Character in Lawyers’ Ethics’ (2009) 12 Legal Ethics 1.CrossRefGoogle Scholar

³⁴ Bartlett, Francesca, ‘Student Misconduct and Admission to Legal Practice: New Judicial Approaches’ (2008) 34 Monash University Law Review 309Google Scholar; Corbin, Lillian and Carter, Justin, ‘Is Plagiarism Indicative of Prospective Legal Practice?’ (2007) 17 Legal Education Review 53CrossRefGoogle Scholar; Mullins, Debra, ‘Warts and All: The Impact of Candour in Assessing Character for Admission to the Legal Profession’ (2009) 28 University of Queensland Law Journal 361Google Scholar; Basten, John and Redmond, Paul, ‘Character Review of Intending Lawyers’ (1979) 3 University of New South Wales Law Journal 117.Google Scholar

³⁵ In Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655, 681, the High Court emphasised that admission (like professional discipline) is concerned with ‘protection of the public'. See also Wentworth v New South Wales Bar Association (1992) 176 CLR 239.

³⁶ See for instance, Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279.

³⁷ In a recent Queensland case, Cohen v Legal Practitioners Admissions Board [2008] QCA 63, there was an opportunity for the court to so decide, when counsel for the applicant suggested that the object of the character test — protection of the public — could be achieved simply by the functioning of the disciplinary process. However, the Court of Appeal dismissed this submission out of hand stating, ‘Our approach should not assume the possibility of infraction': at [10]. This somewhat cryptic statement implies, inexplicitly, that recidivism is not part of the concern on admission. Nevertheless, McMurdo J did concede the question was a ‘difficult and finely balanced’ one: at [12].

³⁸ See above n 14.

³⁹ In Victoria, there is also explicit reference to student misconduct in the legislation which requires a proactive responsibility on educating instructions to make declarations about misconduct: Legal Profession Act 2004 (Vic) s 2.3.3(3).

⁴⁰ Even conviction of a serious offence may not prohibit a court from admitting the applicant: See for instance, Legal Profession Act 2007 (Qld) s 9.

⁴¹ See for instance, Legal Profession Act 2004 (Vic) s 2.3.3(1)(b). It should be noted that this appears to be the case even in NSW which expressly revokes the inherent jurisdiction of the Supreme Court and imports a statutory power: Legal Profession Act 2004 (NSW) s 34(2).

⁴² Should they fail to reveal a matter which is set out in the Act or anything else the court believes an applicant reasonably ought to have known to disclose, this will be treated as evidence of dishonesty or lack of ethical awareness by the applicant: Re OG [2007] VSC 520. We discuss the case law relating to this point shortly.

⁴³ While the general rationale and criteria for determining suitability remains the same, we note a possible shift in the current form of the proposed LPNL, which lists convictions that do not need to be disclosed: Legal Profession National Law s 2.2.17(3). The NSW Act also foreshadows in a note that: ‘The rules may make provision for … [convictions] … that need not be disclosed.'

⁴⁴ Legal Profession Act 2007 (Qld) ss 32 and 33; Legal Profession Act 2004 (NSW) s 26. Victorian legislation does not afford students this opportunity.

⁴⁵ This matter come up in a very recent case of Re Gadd [2013] NTSC 13 at [65] in which the court considered illegal conduct disclosed by the applicant which was not suspected, subject to questioning, charge or prosecution by the police. While these matters occurred some time ago, these admissions could expose the applicant to potential further criminal changes.

⁴⁶ There is precedent for striking off a practitioner on the basis of a failure to disclose a relevant matter to character on admission: Re OG [2007] VSC 520.

⁴⁷ We concede that we know little about much of the process of considering applications in most jurisdictions. We make further comments about this in later sections of this article.

⁴⁸ The Legal Profession Act 2007 (Qld) s 86, unlike Victoria, limits the investigative power to where it is considered ‘appropriate'. The Northern Territory and Western Australia require each applicant to append a police report to their affidavit: <http://www.supremecourt.nt.gov.au/lawyers/documents/Admission_Guidelines.pdf>; http://admittance.lpbwa.org.au/files/files/14_FormA10_NoticeOfApplnForAdmn.pdf. See Part 3 for a discussion of procedural practices that vary between the three states considered.

⁴⁹ Victorian law requires tertiary institutions to provide certification that the applicant has not engaged in any misconduct in his or her studies: Legal Profession Act 2004 (Vic) s 2.3.3(3). This is a positive obligation placed on the university to certify academic honesty, in addition to the disclosure responsibilities of applicants. In Legal Profession Act 2007 (Qld), there is no specific requirement for disclosure or specific inquisitorial powers vested in the Admission Board. However in Form 7, a prescribed form for admission under the Act, applicants are asked to check the following box: ‘I consent to the Board making inquiries of, and exchanging information with, my law school/university as to whether any matter in respect of alleged academic misconduct relates to me': Queensland Law Society, Admission <http://www.qls.com.au/For_the_profession/Your_legal_career/Studying_law/Admission>. However, we believe this information is rarely sought from the university.

⁵⁰ See for instance, Legal Profession Act 2007 (Qld) s 87.

⁵¹ Namely, whether the applicant currently has a ‘material mental impairment': Legal Profession Act 2004 (Vic) s 1.2.6(1)(m). See discussion below in Part 4.

⁵² See for instance, Legal Profession Act 2007 (Qld) ss 88–9. Discussed with reference to recent cases in Queensland and Victoria in Part 4.

⁵³ There is no publicly available data which indicates whether the limited investigative powers conferred on Admissions Boards across the country has provided information leading to a person not being admitted. On the other hand, as discussed in Part 3, there are a few incidents where third parties have provided relevant information as to an applicant's character.

⁵⁴ Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145; Legal Services Commissioner v Turner [2012] VSC 394.

⁵⁵ Re Davis (1947) 75 CLR 409; Borhani v Legal Practitioners Admissions Board [2013] QCA [19].

⁵⁶ Ex parte Lenehan (1948) 77 CLR 403; see also Mitchell M Simon, ‘What's Remorse Got to Do, Got to Do with It? Bar Admission for Those with Youthful Offences’ (2010) Michigan State Law Review 1003.

⁵⁷ And no objection to application or evidence collected by the Board under powers referred to above.

⁵⁸ Re OG (A Lawyer) (2007) 18 VR 164; Legal Profession Act 2004 (Vic) s 2.3.4; Legal Profession Act 2004 (NSW) s 35; Legal Practitioners Act 1981 (SA) s 15(1)(a); Legal Profession Act 2006 (ACT) s 26; Legal Profession Act (NT) s 25; Legal Profession Act 2007 (Qld) s 34; Legal Profession Act 2007 (Tas) s 31; Legal Profession Act 2008 (WA) s 25.

⁵⁹ Mortensen, Reid, ‘Lawyers’ Character, Moral Insight and Ethical Blindness’ (2002) 22 Queensland Lawyer 166.Google Scholar We concede that we are only able to base this conclusion on reported cases. There may be many applications opposed on the basis of the seriousness, frequency and recent occurrence of conduct by an applicant. These may go unreported.

⁶⁰ Re Deo (2005) 16 NTLR 102, [68].

⁶¹ Re Davis (1947) 75 CLR 409.

⁶² Cohen v Legal Practitioners Admission Board (2008) QCA 063; Re Hampton [2002] QCA 129.

⁶³ Re Hampton [2002] QCA 129.

⁶⁴ Prothonotary v Del Castillo [2001] NSWCA 75. See Re Gadd [2013] NTSC 13 in relation to lesser charges.

⁶⁵ A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1.

⁶⁶ Indeed the High Court has been reluctant to become involved in admission disputes. See for instance the refusal of special leave in Queensland Law Society v Taylor (1997) ALJR 652.

⁶⁷ Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655.

⁶⁸ Ibid 681.

⁶⁹ Re Davis (1947) 75 CLR 409, 426 (Dixon J).

⁷⁰ Ibid 419 (Starke J).

⁷¹ Ibid 416 (Latham CJ).

⁷² (1998) 136 ACTR 1, 7. It is worth noting that this case required disclosure of criminal charges notwithstanding that the applicant had been acquitted. Thus, there is no sense of double jeopardy operating for this distinct jurisdiction. The court is interested in the protection of the profession, which may require a separate investigation of the facts surrounding the charges. See also Frugtniet v Board of Examiners [2005] VSC 332, per Gillard J at [22], in which he clarifies the distinction between criminal and disciplinary jurisdictions in these cases: ‘In my opinion the cases establish that an acquittal of a person applying for admission to practise of itself must be given full effect to. However, that would not preclude the Admission Board from fully investigating and considering all the circumstances which may lead to a decision that the applicant is not a fit and proper person. Absent a full and proper investigation in my opinion it is not open to an admission Board to draw any adverse inference against an applicant because he or she has been charged with a criminal offence and is subsequently acquitted. Of course, each case must be considered in relation to its particular circumstances'.

⁷³ Re Legal Profession Act 2004; re OG [2007] VSC 520 (14 December 2007) [123].

⁷⁴ The solicitor concerned (OG) was struck from the Roll. The case concerned collaboration in a subject at university with another student. The Court found that OG had been dishonest in the way in which he revealed this incident on his application for admission.

⁷⁵ See, eg, Legal Profession Act 2004 (Vic) s 2.3.3(3). Applicants in Queensland are also prompted to consider this issue by giving (or not giving) consent for the Admissions Board to directly investigate them by corresponding with their academic institution: Form 7, Supreme Court (Admission) Rules 2004 (Qld) r 13(2)(j).

⁷⁶ Frugtniet v Board of Examiners [2002] VSC 140.

⁷⁷ Ibid [11] (emphasis added). There is some indication that other jurisdictions have taken this as an authoritative expression of the law as in a recent case decided by the Northern Territory Supreme Court: Re Application by Saunders [2011] NTSC 63 (25 August 2011).

⁷⁸ XY v Board of Examiners [2005] VSC 250. The pseudonym ‘XY’ was adopted by the court ‘because of the extremely sensitive nature of the personal information concerning the appellant which is discussed in this judgment': at [2]. Generally, as in other court hearings, the principle of open justice applies to both the conduct of the hearings and publication of names of parties in discipline: Kyle v Legal Practitioners’ Complaints Committee [1999] WASCA 115, [76], [78]; Ellis v Auckland District Law Society [1998] 1 NZLR 750, 759–60. The normal law applies to suppression of public information: R v Sussex Justices Ex parte McCarthy [1924] 1 KB 256, 259. See generally Haller, Linda, ‘Dirty Linen — The Public Shaming of Lawyers’ (2003) 10 International Journal of the Legal Profession 281.CrossRefGoogle Scholar

⁷⁹ This case is discussed in detail in Part 4.

⁸⁰ XY v Board of Examiners [2005] VSC 250, 69.

⁸¹ Ibid 23, 79.

⁸² Ibid 22, 55.

⁸³ It is clear that reputation of the profession is a part of the disciplinary jurisprudence in the area of ‘fitness to practice': Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279; New South Wales Bar Association v Hamman (1999) 217 ALR 553; Haller, Linda, ‘Smoke and Mirrors: When Professional Discipline May Cause Harm’ (2005) 8 Legal Ethics 70.CrossRefGoogle Scholar In the Queensland admission case of Re AJG [2004] QCA 88, the Court stated: ‘Legal practitioners must exhibit a degree of integrity which engenders in the Court and in clients unquestioning confidence in the completely honest discharge of their professional commitments'.

⁸⁴ One decision which presumably resulted in the applicant being admitted was Re Humzy-Hancock [2007] QSC 34 (26 February 2007). In Cohen v Legal Practitioners Admissions Board (No 2) [2012] QCA 106 (20 April 2012) and In a matter of an application for admission as a legal practitioner by Manuccher Ashkan Tai [2013] QCA 39 the applicants were admitted. See also Doolan v Legal Practitioners Admission Board [2013] QCA 43, an ‘early consideration of suitability’ relating to the applicant's mental health and ability to carry out the inherent requirements of practice which was referred to the Queensland Civil and Administrative Tribunal for decision on the facts.

⁸⁵ Re Liveri [2006] QCA 152; Re AJG [2004] QCA 88; Re Humzy-Hancock [2007] QSC 34. For commentary on the evolution and impact of these cases, see above n 34.

⁸⁶ Barristers Board v Young [2001] QCA 556; Gregory v Queensland Law Society Incorporated [2002] 2 Qd R 583.

⁸⁷ Re Bell [2005] QCA 151; Cohen v Legal Practitioners Admissions Board [2008] QCA 63 (denying admission) and Cohen v Legal Practitioners Admissions Board (No 2) [2012] QCA 106 (20 April 2012).

⁸⁸ Re Hampton [2002] QCA 129; Cohen v Legal Practitioners Admissions Board [2008] QCA 63 (denying admission); Barristers’ Board v Khan [2001] QCA 92; Borhani v Legal Practitioners Admissions Board [2013] QCA 14 (refusing admission on the basis of a dishonest disclosure relating to his academic record).

⁸⁹ However, this conduct may need some element of dishonesty in order to cast a stain on an applicant's character: Re Humzy-Hancock [2007] QSC 34. It may also be the case that student misconduct is generally only one factor in a refusal to admit a person, as in most reported cases the candidate was less than honest about the matter or showed no remorse.

⁹⁰ Ibid [27]. The court further said that the applicant must approach the court ‘with the utmost good faith and candour, comprehensively disclosing any matter which may reasonably be taken to bear on an assessment of fitness for practice': at [26].

⁹¹ [2004] QCA 407, [8] (de Jersey J).

⁹² A recent case in NT drew a similar conclusion about an application involving Centrelink fraud: Re Saunders [2011] NTSC 63. The applicant was convicted of offences contrary to the provisions of s 135(2)(1) of the Criminal Code Act 1995 (Cth). He was dealt with in the Court of Summary Jurisdiction where he was convicted on each count and released on a bond in the sum of $2000 in his own recognizance to be of good behaviour for a period of 12 months. The Court considered his disclosure to be insufficient such as to amount to dishonesty and the application for admission was dismissed. While this is an arguably harsh result, the matters concerned a criminal offence and conduct of a dishonest nature, and were therefore uncontroversial as to the need to be disclosed. This decision also took into account the dishonest nature of the offences at [42]. In Re Deo [2005] NTSC 58, there was a similar question about a lack of candour in revealing investigations by ASIC as to his auditor's licence.

⁹³ Morrissey v New South Wales Bar Association [2006] NSWSC 323, [137], citing Re Evatt (1987) 92 FLR 380, 383.

⁹⁴ There have been no cases in NSW relating to non-disclosure since 2006. We discuss later why this may be the case, and the impact fewer cases may have had on the development of jurisprudence in NSW. However, we concede there is an earlier NSW case where admission was denied and which has attracted criticism: Re B (1981) 2 NSWLR 372; Parker, Christine and Evans, Adrian, Inside Lawyers’ Ethics (Cambridge, 2007), 248.CrossRefGoogle Scholar

⁹⁵ Morrissey v New South Wales Bar Association [2006] NSWSC 323.

⁹⁶ Jackson (Previously Known As Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338.

⁹⁷ Board of Examiners, Practice Direction 2 of 2012, Disclosure Requirements for Applicants (11 March 2013) Council of Legal Education <http://www.lawadmissions.vic.gov.au/docs/Practice_Direction_No._2_of_2012_(Disclosure_Requirements_for_Applicants)-10-03-13_.pdf>.

⁹⁸ [2005] VSC 250, 57, 71. XY gave evidence that this was the advice she was given by the Secretary of the Victorian Board of Examiners in 2002.

⁹⁹ XY v Board of Examiners [2005] VSC 250, 60–6.

¹⁰⁰ Board of Examiners, above n 97, 6.

¹⁰¹ Ibid 4–5. General misconduct is not a ‘suitability’ matter listed under the Legal Profession Act 2004 (Vic).

¹⁰² LACC, Documents About Present Admission Policies <http://www1.lawcouncil.asn.au/LACC/index.php/ct-menu-item-3/documents-about-present-admission-policies>.

¹⁰³ [2002] VSC 140.

¹⁰⁴ ‘All applicants seeking admission to the Supreme Court of Victoria are advised that these are National Guidelines and any reference to “statutory declaration” must be read as “affidavit”.': Board of Examiners, above n 97.

¹⁰⁵ For a quick summary, see LACC, Submission to SCAG Working Group on National Legal Profession Reforms (9 March 2011) <http://www1.lawcouncil.asn.au/LACC/images/pdfs/20110309-LACCsubmissiontoSCAG-NationalLegalProfessionReform-SuitabilityforadmissionProceduralRequirements.pdf>.

¹⁰⁶ Ibid 7. These jurisdictions, and NSW, also require police reports and certificates of good standing from overseas applicants from any jurisdictions they have worked in.

¹⁰⁷ We understand that these powers under Legal Profession Act 2004 (NSW) ss 35(3), 37 and 37A have been used to provide the NSW Board with information about an applicant's criminal history; a very recent Queensland case documents the applicant's previous failed attempt to be admitted in NSW. The applicant did not provide fulsome details of his criminal history to the NSW Board, and so the NSW Board asked to be supplied with a copy of a Magistrate's reasons: : In a matter of an application for admission as a legal practitioner by Manuccher Ashkan Tai [2013] QCA 39, [6]. The Queensland Supreme Court ordered that the applicant be admitted in Queensland.

¹⁰⁸ Indeed, NSW takes a more liberal approach to the admission process than other States in other ways. The range of procedural differences as at 9 March 2011 is documented in LACC, Submission to SCAG Working Group on National Legal Profession Reform, above n 105. At that time NSW was the only Australian jurisdiction where intentions to apply for admission did not need to be advertised; in which the application for admission does not need to be in the form of an Affidavit or Statutory Declaration; in which persons supplying character references did not have to state that they are aware of disclosure issues; and one of only two jurisdictions (other being South Australia) that did not require applicants to provide any documentary evidence (original or otherwise) in relation to disclosure matters. However, the NSW Board can use its powers under Legal Profession Act 2004 (NSW) ss 35(3) and 37 to require ‘informed’ character references in certain cases.

¹⁰⁹ Legal Profession Admission Board of NSW, Application for Admission as a Lawyer, Form 10, Declarations 6.1-6.12 (26 June 2013) <http://www.lpab.lawlink.nsw.gov.au/agdbasev7wr/lpab/documents/pdf/form_10_apr_2013%20v1.pdf>.

¹¹⁰ These are listed above in Part 2. In summary, these ‘suitability’ matters relate to past refusals of admission, insolvency, convictions, unauthorised practice, unresolved investigations under legal profession legislation, current professional disciplinary action in any profession, disciplinary action leading to an adverse finding in a tertiary institution, or a trust money contravention. The declaration regarding health will be discussed in Part 4. All other jurisdictions are governed by statute which lists a substantially similar list of ‘suitability’ matters.

¹¹¹ Legal Profession Admission Board of NSW, above n 109.

¹¹² This is a ‘suitability’ matter listed in most governing Acts.

¹¹³ No indication is given to applicants whether this is to be limited to their life as an adult or not. Compare this to the prescribed Originating Motion and Affidavit in Northern Territory which lists each of the ‘suitability’ matters and requires applications to swear that they have read the LACC Disclosure Guidelines: <http://www.supremecourt.nt.gov.au/lawyers/index.htm>

¹¹⁴ ‘I have read and understood the Disclosure Guidelines for Applicants for Admission to the Legal Profession. I am and always have been of good fame and character and am a fit and proper person to be admitted and I have not done or suffered anything likely to reflect adversely on my good fame and character or on whether I am a fit and proper person. I am not aware of any matter or circumstance that might affect my suitability to be admitted as an Australian lawyer and an officer of the Court': Board of Examiners, above n 97, 3.

¹¹⁵ Legal Profession (Admission) Rules 2008 (Vic) r 5.01; Supreme Court (Admission) Rules 2004 (Qld) ss 11-2.

¹¹⁶ Supreme Court (Admission) Rules 2004 (Qld) s 14. It does not seem to provide any further powers to the Admission Board which has wide discretion to consider any matter, but they ‘must’ consider the objection. Such objections can be made at the admission sitting, although the Court of Appeal must give leave for such objections: see a recent example in In the matter of an application for Admission as a Legal Practitioner by JPP [2013] QCA 38, where leave was refused.

¹¹⁷ LACC, above n 105, 1. This may have resulted in the decision in Re AJG [2004] QCA 88 which denied admission to an applicant relating to an incident of student misconduct.

¹¹⁸ [2013] QCA 14.

¹¹⁹ Ibid [12]. The application was ultimately refused.

¹²⁰ For a recent examination of this in the context of the right to practise law, see Gibson, Frances, ‘Psychiatric Disability and the Practising Lawyer’ (2012) 20 Journal of Legal Medicine 391Google ScholarPubMed; Kelk, Norm et al, Courting the Blues: Attitudes towards Depression in Australian Law Students and Legal Practitioners (Brain & Mind Research Institute Monograph, 2009) <http://sydney.edu.au/bmri/research/mental-health-clinical-translational-programs/lawreport.pdf>.Google Scholar There have subsequently been a plethora of initiatives associated with mental illness in this profession. See also Bauer, above n 12, 103; Rhode, above n 26, 595-6.

¹²¹ See, eg, Queensland Law Society, Love Law, Live Life; Resilience and Wellbeing Resources for the Legal Profession <http://www.qls.com.au/For_the_profession/Love_Law_Live_Life>; NSW Law Society, Mental Health and Wellbeing <http://www.lawsociety.com.au/ForSolictors/professionalsupport/supportingyou/mentalhealthwellbeing/index.htm>; New South Wales Bar Association, Care and Assistance for Members, BarCare <http://barcare.org/wordpress/about/>.

¹²² See, eg, SaneAustralia <http://www.sane.org/>; Herbert Smith Freehills, Resilience@law recognised at 2011 AHRI Awards (25 November 2011) Herbert Smith Freehills <http://www.herbertsmithfreehills.com/news/news20111125-fh-resilienceahriawards>.

¹²³ Rhode, above n 26.

¹²⁴ The cases include: Law Society of South Australia v Murphy [1999] SASC 83; Legal Practitioners Conduct Board v Trueman [2003] SASC 58; Victorian Bar Incorporated v Himmelhoch [1999] VSC 222; Legal Practitioners Conduct Board v Thomson [2009] SASC 149; Legal Practitioners Complaints Committee v Pepe [2009] WASC 39; Stanoevski v Council of the Law Society of New South Wales [2008] NSWCA 93; Legal Practitioners Conduct Board v Condon [2004] SASC 346; Skerritt v Legal Practice Board of Western Australia (2004) 29 WAR 173.

¹²⁵ Re B [1981] 2 NSWLR 372, 381 (Moffitt P). See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 380 (Toohey and Gaudron JJ).

¹²⁶ See Coleman, Phyllis and Shellow, Ronal, ‘Ask about Conduct, Not Mental Illness: A Proposal for Bar Examiners and Medical Boards to Comply with the ADA and Constitution’ (1994) 20 Journal Legis 147, 177Google Scholar; Becton, Kelly, ‘Comment: Attorneys: The Americans with Disabilities Act Should Not Impair the Regulation of the Legal Profession Where Mental Health Is in Issue’ (1996) 49 Oklahoma Law Review 353.Google Scholar

¹²⁷ There is no direct authority for this principle in Australia (except of course in legislative provisions) but ample authority in jurisdictions such as the US such as In re Schaengold 422 P.2d 686, 688.

¹²⁸ This is the aim of the character test in so far as it seeks to proactively ‘protect the public’ from future actions of lawyers with bad character: Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655, 681 (Isaacs J).

¹²⁹ Woolley discusses this in detail in the similar Canadian admission context, see above nn 28, 33. See also Justice Glazebrook, Susan, ‘Risky Business: Predicting Recidivism’ (2010) 17(1) Psychiatry, Psychology and Law 88.CrossRefGoogle Scholar

¹³⁰ Legal Profession Act 2004 (Vic) s 1.2.6(1)(m), amended in 2007. The case of XY v Board of Examiners [2005] VSC 250 was governed by the Legal Practice Act 1996 (Vic).

¹³¹ The Victorian regulator of already admitted lawyers, the Legal Services Commission, has also recognised this specific issue and amended its disclosure requirements for granting annual practising certificates so as to ensure that practising lawyers are not discouraged from seeking treatment: ‘New Policy to Encourage Mental Health Discussion', Lawyers Weekly, 16 January 2012; Legal Services Board, Mental Health Policy(December 2011) <http://www.lsb.vic.gov.au/documents/RRP_007_Mental_Health_Policy_V1_(Dec_11).pdf>.

¹³² (NSW) LACC Disclosure Guidelines for Applicants for Admission to the Legal Profession (April 2013) <http://www.lpab.lawlink.nsw.gov.au/agdbasev7wr/lpab/documents/pdf/lacc%20disclosure%20guidelines%20nsw%20version%20apr13%20v3.pdf>; (Victoria) Board of Examiners, above n 97; (Western Australia) Legal Practice Board of Western Australia, Suitability Requirements (2 April 2013) <http://admittance.lpbwa.org.au/Suitablility-Requirements>.

¹³³ XY v Board of Examiners [2005] VSC 250, 33.

¹³⁴ Ibid 78.

¹³⁵ Ibid 41.

¹³⁶ It is notable that there is no evidence in the case of XY's counsel or the court objecting to any of this questioning and innuendo. Applicants for admission and their counsel may believe some questioning steps over the mark of what is legitimate but may fear prejudicing the application itself if they are seen as obstructionist or lacking in candour during the admission process.

¹³⁷ Indeed in the LACC Disclosure Guidelines adopted in NSW and Victoria, there is a non-binding statement that where the applicant provides evidence of an ‘appropriately managed’ condition, ‘it is highly unlikely that the disclosure will lead to an adverse assessment’ of suitability.

¹³⁸ Legal Profession Act 2004 (NSW) s 9(1)(m). Applicants are required to tick a box which indicates: ‘I do not suffer from any infirmity, injury, mental or physical illness, impairment or disability which makes me unable to carry out the inherent requirements of practice as an Australian legal practitioner [emphasis added]: Legal Profession Admission Board (NSW), above n 109, Declaration 6.11. However, NSW has also adopted the LACC Disclosure Guidelines which, as described above, indicate that a broader duty of disclosure might apply.

¹³⁹ Legal Profession Act 2007 (Qld) s 9.

¹⁴⁰ Hubbard, Ann argues the concerns ought to be, ‘[f]irst, the … professional impairment, not diagnosis of or treatment for mental disorders. Second, the key to avoiding professional impairment is early treatment, and the key to encouraging early treatment is confidentiality': ‘Improving the Fitness Inquiry of the North Carolina Bar Application’ (2003) 81 North Carolina Law Review 2179.Google Scholar

¹⁴¹ Bauer, above n 12, 96.

¹⁴² See for instance, the LACC Disclosure Guidelines as adopted in Victoria, at 5.

¹⁴³ It is clear that this is no longer requires in Victoria; see for instance, Board of Examiners, Information for Practical Legal Training Applicants, 8, <http://www.lawadmissions.vic.gov.au/docs/Information_for_Practical_Legal_Training_Applicants.pdf>. In NSW, the very recently adopted LACC Guidelines make this separation clear.

¹⁴⁴ Gibson, above n 120, 393.

¹⁴⁵ We concede that we do not know the reason for this lengthy delay and it was a complex case.

¹⁴⁶ [2013] QCA 43 [2], and considered by McMurdo CJ at [23] to [24]. The Court clearly indicated this was not attributable to any obstruction by the Board itself.

¹⁴⁷ Ibid [1].

¹⁴⁸ Supreme Courts have the power to admit persons with or without conditions: ie. Legal Profession Act 2007 (Qld) s 35(3). There is no specific mention of conditional admission in a ‘compliance certificate’ under the LPNL. However, the courts presumably will retain the discretion to impose conditions. It is at this level that another area of concern arises. Most certification is granted by professional bodies. These bodies are typically given powers to consider ‘suitability’ matters as at admission, but they may also grant a licence to practise ‘conditionally'. Their power to do so is very broad; most having the power to impose any condition which is ‘reasonable and relevant': Legal Profession Act 2007 (Qld) s 53(1). This may happen more often than we know and be given less scrutiny as it is not performed in an open court. For further discussion of the powers of professional bodies to deal with health issues through practising certificate powers see: Linda Haller, ‘Imperfect Practice under the Legal Profession Act 2004 (Qld) ‘ (2004) 23 University of Queensland Law Journal 411, 431.

¹⁴⁹ For instance, Legal Profession Act 2004 (NSW) s 50.

¹⁵⁰ Denzel, Stephanie ‘Second-Class Licensure: The Use of Conditional Admission Programs for Bar Applicants with Mental Health and Substance Abuse Histories’ (2011) 43 Connecticut Law Review 889, 914.Google Scholar

¹⁵¹ Ibid.

¹⁵² Doolan v Legal Practitioners Admission Board [2013] QCA 43, [25]. However, compare the case of Re Currie FC 91/016 (1991) at 13, in which the Queensland Court of Appeal doubted the appropriateness of re-admitting someone with conditions particularly where these would be unlimited in time. It found that that ‘… it is undesirable, in our opinion, that there be categories of practitioners, some of whom are and some of whom are not subject to continuing restrictions on their right to practise.'

¹⁵³ Bauer, above n 12, 96; Denzel, above n 150; Wielobob, Allison, ‘Bar Application Mental Health Inquiries: Unwise and Unlawful’ (1997) 24 Human Rights 12Google Scholar; Long, Diane, ‘Professional Licensure, Mental Health Inquiries and the Americans with Disabilities Act’ (1995) 15 Developments in Mental Health Law 1.Google Scholar

¹⁵⁴ Such as the necessity of asking specific questions and its probity to the ‘protection of the public.’ Bauer, above n 12, 96.

¹⁵⁵ However, interestingly some 16 years later, Stephanie Denzel reports the alarming rise in such questions around the US. It is clear that the ADA has not meant that this inquiry has disappeared or even diminished as criteria for further scrutiny and possible denial of admission. In contrast, Bauer documents the arguments made by many anti-discrimination activists that any questions relating to mental health or other disabilities may be impermissible under the ADA. He ultimately argues for a ‘relaxed scrutiny’ which asks such questions but must relate them to present risks to the public. Yet, as he argues, it is very difficult to demonstrate this causal link and the ‘narrowly’ drawn questions as to recent issues or serious mental health problems, do not escape criticism as still being stigmatising and discriminatory. See also discussion of Canada in Downie, Jocelyn, ‘Law Societies as Arbiters of Mental Fitness’ (2001) 24 Advocates’ Quarterly 467.Google Scholar

¹⁵⁶ [2012] NSWADT 234. This case follows a number of preliminary decisions: to refuse an order to strike out proceedings in Murtough v NSW Bar Association [2011] NSWADT 243 (21 October 2011) and other procedural questions in Murtough v NSW Bar Association (No 2) [2012] NSWADT 23 (14 February 2012).

¹⁵⁷ If the Bar Association refuses to grant a practising certificate, it must give the applicant an Information Notice setting out the decision and the reasons: Legal Profession Act 2004 (NSW) s 48(12).

¹⁵⁸ [2012] NSWADT 234 [9] to [12]. Interestingly, the treating doctors recommended certification with conditions which was rejected by the Bar Association. Indeed, the Bar Association argued that the need for the conditions indicated incapacity to carry on the inherent requirements of practise. This begs the question of when a condition can be imposed and its function.

¹⁵⁹ Anti-Discrimination Act 1977 (NSW) s 49B(1)(a).

¹⁶⁰ The Tribunal found that there was no evidence of an actual comparator and formed a hypothetical comparator who would also have been refused certification on the basis of failure of the examinations: [2012] NSWADT 234 [39] to [52]. It also found that Murtough failed to establish causation.

¹⁶¹ Gibson also makes an argument based on the provisions of the Convention on the Rights of Persons with Disabilities, ratified by Australia in 2008. Gibson, above n 120.

¹⁶² Doolan v Legal Practitioners Admission Board [2013] QCA 43 [21].

¹⁶³ Averitt, Hannah, ‘A Mental Bar: Should Past Psychological Problems Affect Bar Admission?’ (2004) 28 Law & Psychology Review 97, 101Google Scholar; also citing Rhode, above n 26, 582.

¹⁶⁴ Ibid.

¹⁶⁵ Bauer, above n 12.

¹⁶⁶ (2004) 29 WAR 173.

¹⁶⁷ Ibid [44] (emphasis added).

¹⁶⁸ Legal Profession Act (WA) s 8(1)(m) sets out a similar test to NSW and Queensland.

¹⁶⁹ Where an applicant appeals a decision of the admission authority, we gain an insight insofar as the court judgment reports the relevant facts and arguments.

¹⁷⁰ See for instance, Legal Profession Admission Board (NSW), Annual Report 2010-2011, 13, <http://www.lpab.lawlink.nsw.gov.au/agdbasev7wr/lpab/documents/pdf/lpabannualrpt2011part_1.pdf>. Contrast Victoria, where numbers do not appear to have been reported since 2010-2011.

¹⁷¹ Western Australia appears to be the exception to this, which we discuss shortly.

¹⁷² Rhode, above n 26, 585. However, Swisher indicates that there might be an increase in refusals in the last 30 years in the US: Swisher above n 27, 1046. In Australia, there are only hints as to the rates of refusal, as in the professional literature. See for instance, Holmes, Christopher, ‘Dealing with Disclosure’ (2010) 46 Young Lawyers Journal 7Google Scholar, who quotes Bruce Pippett, a solicitor member of the Victorian Board of Examiners, as saying ‘Applicants must show candour. If you show candour and you admit what you have done wrong and demonstrate some reformation … well then the likelihood is that you will be let through. There are very few we throw out'.

¹⁷³ LACC, Submission to Taskforce on National Legal Profession Reform, 19 July 2010, 5, <http://www1.lawcouncil.asn.au/LACC/images/pdfs/NationalLegalProfessionReform.pdf>.

¹⁷⁴ Some jurisdictions may have been reporting actual admissions rather than applications for admission.

¹⁷⁵ N=1595 applications with no disclosures in NSW in 2009. In its Annual Report for 2011-12, the Admission Board reported that it admitted 1864 persons: Legal Profession Admission Board ‘Annual Report 2011-12', 13 <http://www.lpab.lawlink.nsw.gov.au/agdbasev7wr/lpab/documents/pdf/lpab%20annual%20rpt%202012%20part%201.pdf>.

¹⁷⁶ N=1457. The Victorian Board of Examiners does not publish any admission statistics. Nor does the Supreme Court of Victoria appear to routinely report admission statistics, although it did state in its 2010-2011 Annual Report that 1263 applicants had been admitted that year: Supreme Court of Victoria, Annual Report 2010-2011, 29, <http://www.supremecourt.vic.gov.au/home/library/supreme+court+of+victoria+2010-11+annual+report>.

¹⁷⁷ Such quantitative data is not publicly available for other years in any of the jurisdictions considered.

¹⁷⁸ This is numerically distinct as well: in NSW only 244 revealed matters compared to 1384 in Victoria.

¹⁷⁹ Compare to Queensland where 16% of disclosures were categorised as serious.

¹⁸⁰ As discussed above in Parts 2.2 and 3.

¹⁸¹ (1998) 136 ACTR 1, 7.

¹⁸² That is, not judicial, and thus open and public, decision making. This is not to suggest that we agree that no information of this nature should be publicly available. Indeed, in Part 6 we argue that this should be public information (quantitatively).

¹⁸³ See above Part 2.1. For instance, Legal Profession Act 2007 (Qld) s 9; Legal Profession Act 2004 (Vic) s 1.2.6; Legal Profession Act 2004 (NSW) s 9.

¹⁸⁴ In Victoria, unlike other jurisdictions, this is listed explicitly in the Act: Legal Profession Act 2004 (Vic) s 2.3.3(1) (ab) inserted in 2007.

¹⁸⁵ Prothonotary v Del Castillo [2001] NSWCA 75.

¹⁸⁶ Legal Practice Board, Western Australia, Annual Reports: <http://public.lpbwa.org.au/Annual-Reports>.

¹⁸⁷ More particularly (and as summarised by us), in 2010-11, the Admissions and Registrations Committee (ARC) considered 19 applications where a disclosure about a suitability matter was made. Of the 15 applications approved on the papers, the disclosures related to:

• 5 applications related to academic misconduct or plagiarism

• 4 applications related to spent convictions

• 2 applications related to convictions for drug possession (7-10 years)

• 2 applications related to possible unqualified practice

• 1 application related to unfounded allegations of improper conduct whilst a public officer and related criminal charges (5 years prior)

• 1 application related to bankruptcy (10 years prior)

Two applicants were required to meet with the Convener to discuss their applications. In one case, allegations of possible unqualified practice and possible criminal conduct had been made to the Professional Affairs Committee. In the other, the applicant had disclosed:

• 1 conviction for exceeding the drink driving limit;

• 1 conviction for driving under the influence; and

• 1 conviction for driving whilst under suspension.

The convictions occurred over a five year period, the last being five years prior.

The ARC subsequently resolved that both applicants were fit for admission.

Of the 2 remaining applications, one applicant disclosed several matters including two convictions for stealing from her employer and 1 for Centrelink fraud and the other was applying for readmission. In each case the ARC resolved that it would hold a formal hearing. Neither application was determined before 30 June 2011: Legal Practice Board of Western Australia, Annual Report 2010-2011, 30, <http://www.lpbwa.org.au/files/files/146_2010-2011_Annual_Report_LPB.pdf>.

¹⁸⁸ As mentioned already, there is little public information about what matters require hearings and what is said in these private meetings. Documentary evidence of any relevant matter, whether it is sealed children's matters or treatment sessions, will be required to be produced. As to the hearing process, see the useful information contained in the Western Australian Annual Report. In Victoria, it appears the hearings are informal and deal with multiple applications in one sitting except where more ‘serious’ cases are considered. Holmes describes the process: ‘The hearing itself can be extremely intimidating. Applicants are grilled about their past actions by seven senior practitioners with over 200 years of combined experience in law, who make no apologies about being tough on people': Holmes above n 172, 7.

¹⁸⁹ LACC, Submission to SCAG Working Group on National Legal Profession Reform, 11, <http://www1.lawcouncil.asn.au/LACC/images/pdfs/20110309-LACCsubmissiontoSCAG-NationalLegalProfessionReform-SuitabilityforadmissionProceduralRequirementspdf>.

¹⁹⁰ See discussion of case law in Part 3. This ‘educative’ role at admission is highlighted by the Victorian Board of Examiners in its ‘Submission to the COAG taskforce on National Legal Profession Reform', 1-3: <http://www.ag.gov.au/Documents/157%20-%20Victorian%20Board%20of%20Examiners%20(BOE)%20submission.pdf>.

¹⁹¹ See previous discussion of this at above n 3.

¹⁹² Legal Profession Act 2004 (NSW) s 36.

¹⁹³ Legal Profession Act 2004 (NSW) ss 28(1) and (3) as to appeals.

¹⁹⁴ The argument is thus: like admission authorities elsewhere, the Legal Profession Board of NSW is given little power and few resources to pro-actively investigate applicants for admission. It is consequently reliant on applicants’ self-disclosure of adverse information (ie past conduct). Therefore, it is likely to be on information disclosed by an applicant that he or she is denied admission. (More precisely, the compliance certificate that is required as a first step to admission). Appeals are generally only made by applicants denied admission at first instance (or, less commonly, re-admission). As we have discussed in Part 5, there are far fewer disclosures in NSW than in Victoria and in Queensland. Therefore, applicants in NSW are likely to have less need to appeal refusals to the Supreme Court. Hence we can surmise that the Supreme Court of NSW has fewer opportunities to develop its jurisprudence.

¹⁹⁵ For instance, none of the Queensland cases refer to Frugtniet v Board of Examiners [2002] VSC 140 or to any interstate admission decision. Similarly, Victorian cases prefer to cite only to previous Victorian decisions.

¹⁹⁶ We would encourage this to be more than simply providing numbers in categories of ‘serious’ and ‘minor’ with no direction as to what these mean. The Western Australian example, above n 187, provides a feasible guide.

¹⁹⁷ LSC v J [2011] VCAT 1390. (We have not provided the lawyer's name here or in the text to avoid further disclosing what we believe is confidential and irrelevant information about that person).

¹⁹⁸ We question its relevance in this decision whether to professionally discipline the practitioner for a separate matter. The Court implied that the past issue with dishonesty, not sufficient to exclude the person from admission to the profession, continues to indicate faulty character which goes to assessment for the purpose of continuing to licence that person.

¹⁹⁹ Greater scrutiny and concern about mental illness in the profession may lead to the perverse consequence of a more discriminatory system of admission for those suffering mental illness. This may also be a legitimate consideration at law in Australia. For instance, it was stated in a Queensland disciplinary decision, Legal Services Commissioner v CBD [2012] QCA 69 per Muir JA at [33]:

…Although primary regard must be had to the protection of the public and the maintenance of proper professional standards, it does not follow that the impact of penalties on a practitioner, particularly insofar as they may affect the practitioner's health and ability to practise in future, are irrelevant.

²⁰⁰ LACC, Submission to SCAG Working Group on National Legal Profession Reform, Attachment A, 5, <http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=258B844E-024E-1F05-7D54-E5B93B426CD2&siteName=lca>.

²⁰¹ In particular, ‘requiring the separation of medical information from other aspects of the selection process, evaluation of the information by personnel with appropriate medical expertise, and strict limitations on who else may have access to that information': Bauer above n 12, 101 (taking from the terms of the Americans with Disabilities Act).

²⁰² Victorian Board of Examiners, Information for Practical Legal Training Applicants, 6, <http://www.lawadmissions.vic.gov.au/docs/Information_for_Practical_Legal_Training_Applicants.pdf.>; NSW: <http://www.lpab.lawlink.nsw.gov.au/agdbasev7wr/lpab/documents/pdf/lacc%20disclosure%20guidelines%20nsw%20version%20apr13%20v3.pdf> Queensland: http://www.qls.com.au/For_the_profession/Your_legal_career/Studying_law/Admission>.

²⁰³ [2005] VSC 250. Compare to the re-admission decision in Re Currie FC 91/016 (1991).

²⁰⁴ [2013] QCA 14.

²⁰⁵ The LPNL as it stands replicates the model for admission in so far as the courts can only admit those who are ‘fit and proper.’ LPNL s 2.2.1(b), 2.2.2, 2.2.3(1)(c).

²⁰⁶ See above n 14: a list of suitability matters in current Model Laws that state admission authorities must consider in deciding on an applicant's suitability. It is likely that the types of matters relevant to ‘character’ will be the same in any National Rules: LPNL s2.2.3(2). We acknowledge that there has been criticism of the creation of national bodies to regulate the profession, including for admission. For instance, the Victorian Board of Examiners has expressed concern about the capacity of a national Board to process so many applications (approximately 5000 each year) across Australia given that 5% disclose serious matters in Victoria each year: Victorian Board of Examiners, ‘Submission to the COAG taskforce on National Legal Profession Reform', 1-3: <http://www.ag.gov.au/Documents/157%20-%20Victorian%20Board%20of%20Examiners%20(BOE)%20submission.pdf>. We refer to our discussion in Part 1 to indicate that this may not be representative of the rest of the country. The Submission also expresses concern about the extent to which a national Board could properly provide ‘education’ and suitability hearings.

²⁰⁷ State courts must report any refusals to admit, the court's reasons for refusal and provide a transcript of the proceedings: LPNL s 2.2.16(2).

²⁰⁸ There is less likelihood that a local community of lawyers will be judging new entrants into that same small community. As the Board is in NSW there is still some danger of this in that state. However, the Board will presumably recruit a range of people to assess applications from across Victoria and NSW, and could easily deal with issues of confidentiality and due process.