3.1 The Commission’s reference is to inquire into the policy objectives and impact of provisions in the Legal Profession Act 1987 (NSW) that deal with the Bar Council’s ability to impose conditions on a barrister’s practising certificate, in particular the requirement of a barrister to undertake and satisfactorily complete, a reading program. The Commission has found no evidence that the powers given to the Bar Association have been used in an inappropriate or improper manner. The Commission accepts the policy objectives behind the legislation, and recommends that no change be made to the provisions at this time.
3.2 In reaching this conclusion the Commission points out that the introduction of the provisions was likely to have a minimal impact on the legal profession as it reflected practices and procedures adopted by the Bar for several years. Furthermore, the Commission acknowledges that the provisions have been in force for a very short period of time: too short to permit a statistical sample to be taken of their operation.1
Matters for further consideration
3.3 Two matters arise from the Bar Association’s Reading and Pupillage Program that the Commission believes require consideration on the ground that they are potentially or actually restrictive. The first is that the control of the Program lies exclusively with the Bar Association, in contrast to the practical legal training program for solicitors provided by the College of Law (as it is commonly known). The College is the School of Legal Practice within the University of Technology, Sydney, and is therefore subject to review by the Academic Board of the University and the instructors are members of the academic staff of the University.
3.4 The equivalent program for barristers lacks these features. Where the issue of a practising certificate depends upon satisfactory completion of a course of instruction directly controlled by the Bar Association, that structure might possibly be perceived as a restrictive practice and as exhibiting elements of control which might be exerted in the interests of existing members of the Bar Association at the expense of free professional competition. Further, the absence of professional input into the teaching skills aspect of the program may adversely affect its educational quality. To address these issues, the Commission suggests that the Bar should consider a biennial review of its Reading and Pupillage Program to be conducted by a committee which should include at least one academic, one member of an independent Bar from another state and one lay person, together, of course, with a representative or representatives of the New South Wales Bar Association.
3.5 The second matter is that the current rules of the Bar limit those who are available to act as tutors, to members of the Bar Association.2 The Commission is of the view that Tutors should be drawn from any practising members of the Bar (other than Queen’s Counsel or Senior Counsel).
FOOTNOTES
1. In a letter to the Commission dated 23 September 1993, the New South Wales Bar Association stated that it was too early to make any worthwhile assessment of these provisions.
2. The New South Wales Bar Association Rules, R100 (b)(iii).
