PRACTICE REQUIREMENTS IN OTHER AUSTRALIAN STATES AND TERRITORIES AND THE UNITED KINGDOM
New South Wales and Queensland are the only Australian States that have a formally divided legal profession with no common admission as a barrister and solicitor.1 Whilst the other states and territories allow a successful applicant admission as both a barrister and solicitor, over the years a practical division has emerged, as after admission an applicant often chooses to practise only as a barrister or solicitor. Separate Bars have consequently come into existence, and individual State and Territory Bar Associations with their own rules of conduct, pupillage requirements, and disciplinary procedures have become established. Whilst such rules are not legally enforceable, peer pressure has, to an extent ensured that such rules are generally complied with, if a barrister wishes to continue to practise successfully within that jurisdiction.
Some Bar Associations have not developed their own rules of conduct, possibly due to membership size and lack of resources, and barristers practising in that jurisdiction are governed by the Act that regulates the legal profession in the particular State or Territory.
Victoria
The enactment of the Legal Profession Practice Act 1891 (Vic) legally fused the barristers’ and solicitors’ branches of the legal profession in Victoria, and this distinction is maintained in the current Act, the Legal Profession Practice Act 1958 (Vic).2 In practice, however, the branches remain quite separate, for a person admitted as a “barrister and solicitor” of the Supreme Court of Victoria must make an election whether they wish to be inscribed on the Roll of Counsel or on the Roll of Solicitors.
If a person elects to practise as a barrister in Victoria, he or she must make application to sign the Roll of Counsel. The Roll of Counsel constituting the Victorian Bar is kept by the Victorian Bar Council, who upon being satisfied as to the applicant’s qualifications, intention to practise as counsel in Victoria, and obtaining further undertakings as required, may, subject to its discretion, consent to the applicant’s signing of the roll. The undertakings required of applicants include that they will abide by all rulings of the Victorian Bar Council and conform to all principles of practice, including ethical principles, and the rules known as application rules, reading rules and clerking rules. The Constitution of the Victorian Bar provides for these rules.
Traditionally the Victorian Bar has required that upon commencing practice as a member of the Bar, a reading period is to be spent in the chambers of a practising barrister. The reading period is designed to ensure that the proposed member of the Bar has some training in the rules of practice and an understanding of the ethical obligations of the profession. The period is currently nine consecutive calender months, and a practical training course run by the Bar Council is generally required to be undertaken.
Certain exceptions exist to the reading requirement, including an applicant who has been a former member of the Bar and who practised for a period of not less than 12 months and whose name was removed from the Bar Roll voluntarily, an applicant who practised for a period of not less than 12 months, solely as a barrister in another jurisdiction where the common law of England is practised and who was not a member of any association of solicitors during that time; an applicant who is and who intends to continue to be employed as a Parliamentary Counsel for the Commonwealth or the State of Victoria, or as a Prosecutor for the Commonwealth or the State of Victoria, or an applicant to whom the Bar Council has granted an exemption.
An applicant required to read shall not engage in any legal work otherwise than as reader to the master for the practical training period.
Queensland
The admission of barristers in Queensland is regulated by the Barristers Admission Rules which are prescribed by the Judges of the Supreme Court of Queensland, but which are not the subject of any legislation. The Barristers Board of Queensland administers these rules. Neither the Bar Association of Queensland nor the Barristers Board play a role in issuing practising certificates.
The Barristers Admission Rules prescribe what qualifications are required for admission in Queensland and once these qualifications have been met, the applicant is issued with an unconditional practising certificate, there being no provision for conditional admission. Provision for conditional admission does however, exist for solicitors.3 Once admitted, the Barristers Board does not require any further pupillage or reading program to be undertaken.
Before admission, an applicant has to have obtained certain tertiary qualifications and undertaken and passed several practical tests and exercises.4 A person is eligible for admission if he or she has practised interstate or in the United Kingdom,5 although the Board may require in such cases that the applicant undertake a course of practical training.6
South Australia
The practice of the law in South Australia is regulated by the Legal Practitioners Act 1981 (SA). Under the Act, every practitioner is admitted and enrolled as a barrister and solicitor of the Supreme Court of South Australia. The legal profession in South Australia has recently been the subject of a review by the South Australian Government, with the release of a Green Paper in 1990 and a White Paper in 1992. One of the issues that these papers addressed is the structure of the profession.
Until 1993, section 6 of the Legal Practitioners Act 1981 (SA) allowed the Supreme Court, upon the application of the Law Society, to divide legal practitioners into two classes, one class consisting of barristers and the other class consisting of solicitors.7 There was concern amongst a number of groups that this was giving rise to a divided profession, and that was not considered desirable, given the government’s support for the continuation of a fused legal profession. On 6 May 1993 section 6 was repealed and a new section inserted which affirms that the legal profession in South Australia is fused, but at the same time does not prohibit the development of a separate bar on a voluntary basis.
The South Australian Bar Association Incorporated is an Association whose members have chosen to practise solely as barristers, and although virtually all barristers in South Australia are members of the association, membership is voluntary. There are currently 110 members.8 Whilst the bar has its own rules, these rules are not legally enforceable. As a consequence, if a member breaches the Bar Rules, that member may be expelled from the Bar Association, but the Association cannot prevent that person from continuing to practise. Disciplinary complaints against members are dealt with by a Committee established under the Legal Practitioners Act, and in appropriate cases, the Supreme Court.
The Legal Practitioners Act 1981 (SA) is responsible for the issue of practising certificates, and section 17a allows conditions to be imposed on the issue of new practising certificates in respect of training and experience, and such conditions can be enforced by the non-renewal or cancellation of the certificate if those conditions are not complied with. The Bar Association imposes no additional pupillage or reading requirements.
Tasmania
In Tasmania, a person is admitted to the Supreme Court as both a barrister and solicitor. Admission is governed by the Legal Profession Act 1993 (Tas).9 There has been a small, separate Bar in Tasmania for many years. There is no statutory recognition of this association, however it does have independent rules and regulations, for example a person practising solely as a barrister cannot accept briefs from the general public, but only through a solicitor.
Australian Capital Territory
A person is entitled to be admitted as both a barrister and solicitor in the Australian Capital Territory (ACT). Once a person has been entered on and signed the Roll of Barristers and Solicitors, they are then entitled to practise in the Territory as a barrister and solicitor, as a barrister, or as a solicitor.10 The Legal Practitioners Act 1970 (ACT) governs the issue of all practising certificates, for both barristers and solicitors. Unrestricted practising certificates are issued, but limitations can apply, including that an applicant must have served a two year clerkship in a State or Territory.11
A small, separate bar has developed in the ACT, comprising of approximately 25-30 barristers, excluding those employed by the Director of Public Prosecutions Cth or ACT. The Bar Association has no control over the issue of practising certificates, nor does it have any formal pupillage or reading requirements. An informal arrangement exists whereby inexperienced barristers are given some instruction in the basic elements of practice. The Association and its members are governed by the Legal Practitioners Act 1970 (ACT).
Northern Territory
Once an applicant has been admitted to practice in the Northern Territory he or she is entitled to practise as a barrister and solicitor, a solicitor or a barrister.12 Section 22 of the Legal Practitioners Act 1974 (NT) requires however, that in order to practise, the person must hold an unrestricted practising certificate or in the case of those wishing to practise as a barrister, a restricted practising certificate class 2, which allows the holder to practise as a barrister only and whilst under pupillage, to practise for a period, of no less than 12 months and no more than 2 years, with a local counsel who holds an unrestricted practising certificate.13
The Law Society of the Northern Territory is responsible for issuing practising certificates in relation to all legal practitioners, including those practising as counsel. The Bar Association has no jurisdiction in that regard. Those practising solely as barristers in the Northern Territory are governed by the Legal Practitioners Act 1974 (NT). This Act is comprehensive and regulates the issue of practising certificates and the limitations that can be imposed on those certificates. As well as the limitations (discussed in the preceding paragraph) that can be attached to a practising certificate, the Law Society can refuse to issue a certificate if it is not satisfied that the applicant has passed the requisite exams, and has an adequate knowledge of accounts and legal ethics. Section 27 of the Legal Practitioners Act 1974 (NT) provides further general grounds for the refusal, cancellation or suspension of practising certificates.
A review of the Act is being conducted, and it is envisaged that amendments will be introduced in 1994.
Western Australia
Western Australia has a fused legal profession, although a separate, independent Bar has emerged. In 1993 there were approximately 85 practitioners practising at the Independent Bar. The Legal Practitioners Act 1893 (WA) vests statutory authority over the admission and discipline of all legal practitioners in the Legal Practice Board.
The Legal Practice Board has the power to regulate the issue, review and renewal or refusal of practice certificates, the conditions to which such certificates may be made subject, and the fees to be charged. A practitioner who wishes to practise in Western Australia must hold a practice certificate. Practice certificates are issued for a 12 month period commencing on 1 July each year.
There is no special practice certificate issued to practitioners who practise as barristers at the Independent Bar. There is freedom of movement to and from the independent Bar. Practitioners seeking to move to the Bar present themselves to the Full Court of the Supreme Court to announce their intention of moving. There is a separate Bar Association in Western Australia and most barristers are members. Membership is not a pre-requisite for practising at the Bar.
United Kingdom
The professions of barrister and solicitor in the United Kingdom are entirely separate and one cannot be a member of both professions at the same time. Whilst a solicitor has to obtain an annual practising certificate from the Law Society in order to practise, once a barrister has obtained his or her “final certificate”, which permits that person to practise in his or her own right, no further certificates are required.
Since 1987,14 the Bar Council has been the central governing body of the Bar in England and Wales. Regulations which govern entry to the profession are called the Consolidated Regulations of the Four Inns of Court. The most recent version of these regulations was issued in 1992. There is also a Code of Conduct for the Bar of England and Wales which is published by the Bar Council and which sets out the rules of conduct which a barrister is under a professional duty to observe. The rules of conduct are not binding or legally enforceable and have no effect outside the profession. This is the same status as the New South Wales Bar Rules.
Before being called to the Bar, a person must have obtained certain academic qualifications and passed the Bar exam, the course of tuition leading to it, a series of practical exercises and certain other courses provided by the Council of Legal Education.15 This body is responsible for the examination and training of student members of the Inns of Court. It administers the Inns of Court School of Law and provides lectures, tutorials, and other courses, subject to directions given by the Bar Council on matters on general policy.
Once that stage is completed, persons wishing to practise as a barrister in England are then obliged to undertake pupillage with an approved barrister (a “Pupil Master”) possessing at least five years experience in practise as a barrister.16 Pupillage may only be undertaken after the pupil has completed the “Vocational Course” conducted by the Council at the Inns of Court School of Law, and after sitting the “Final Assessment.”17 The pupillage period is a compulsory twelve month period, and is divided into a non-practising period of six months, and a practising period of six months.18 Upon completion of the initial non-practising period of pupillage, the pupil obtains a certificate from his / her pupil master for submission to the Masters of the Bench and the Bar Council, certifying the satisfactory completion. A provisional Practising Certificate is then issued to the pupil.19
Guidelines for the conduct of pupillage are prescribed in Part II Annex C of the Code of Conduct. The guidelines state the general obligations and functions of a pupil and pupil master. Included in those duties is the requirement that the pupil draft pleadings and opinions, accompany the master to court on sufficient occasions so that he or she has the opportunity to do work and gain experience as is appropriate for a person commencing practice in the type of work done by the pupil master. For example, guideline 6 provides that:
In the second six months he should take a direct interest in and monitor all work his [the master’s] pupil does on his own. In particular he should in relation to court appearances by his pupil give assistance before he goes into court and the opportunity for discussion afterwards. He should however take all reasonable steps to ensure that his pupil does not do so much on his own that his pupillage is impaired.20
Upon completion of the second (practising) six month period, the pupil is provided with a certificate from the pupil master which certifies that the pupil has satisfactorily completed this period, which entitles the pupil to be registered as a practising barrister upon receipt by the Bar Council.21
Should the pupil master, or any other person able to sign a certificate (specified in reg. 49(f) refuse to do so, the pupil may request the Masters of the Bench to grant a certificate, on the grounds that the certificate was wrongly withheld.22 Where the Masters of the Bench refuse to issue a certificate, an appeal lies to the Joint Regulations Committee (JRC), which may dismiss the appeal or allow it unconditionally or subject to conditions.23
FOOTNOTES
1. The Legal Profession Reform Act (NSW) requires common admission of legal practitioners in New South Wales, but separate practising certificates will still be issued to barristers and solicitors.
2. Legal Profession Practice Act 1958 Section 5. Prior to the Legal Profession Practice Act 1891, there were approximately seven fusion bills introduced into the Victorian Parliament
3. Section 40A, Queensland Law Society Act 1952-85.
4. Rule of Court, Rules Relating To The Admission Of Barristers Of The Supreme Court Of Queensland, 19-25.(Hereafter Queensland Admission Rules)
5. Queensland Admission Rules, 15(d)(3)-(5).
6. Barristers Admission Rules Amendment Order (No 1) 1992, s 5.
7. Legal Practitioners Act, 1981(SA), s 6.
8. The development of a separate bar has taken place since the 1960’s.
9. Prior to this Act the legal profession in Tasmania was governed by the Legal Practitioners Act 1959.
10. Legal Practitioners Act 1970 (ACT), s 15A.
11. Legal Practitioners Act 1970 (ACT), s15E.
12. Legal Practitioners Act 1974 (NT), s19.
13. Legal Practitioners Act 1974 (NT), s 6.
14. Prior to that time a body called the Senate of the Inns of Court and the Bar.
15. Consolidate Regulations of the Four Inns of Court 1992, Reg 18(a)(i), (b), Schs 12 and 13.
16. Consolidated Regulations of the Four Inns, Reg 42 and 43(a). Certain exceptions and dispensations from Pupillage apply (reg 45). There are also alternative modes of serving part of the Pupillage requirements (reg 46).
17. Regulation 44.
18. Regulation 43(b).
19. Regulation 49(d).
20. The complete provisions of Annex C are included in a letter sent by the Bar Council, 9 September 1993.
21. Regulation 49(e).
22. Regulation 49(g).
23. Regulation 49(h).
