'Disclosing Lawyers: Questioning Law and Process in the Admission of Australian Lawyers' by Francesca Bartlett and Linda Haller in (2013) 41(2)
Federal Law Review 227
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Australian lawyers are assessed and admitted 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. Very 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 conduct, and how many are refused admission.
This article focuses on the three largest jurisdictions of New South Wales, Victoria and Queensland. It traces their varying approaches to admission; from legislative provision, court interpretation to administrative approach. It also examines some rare data about disclosure patterns 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 possibly fairness, ensured for applicants, particularly where 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. ...
Do these discrepancies in state disclosure rates, and process practices, really matter? We would argue, at least, that the consequences of these differences may be significant. For instance, it is possible that in Victoria, and Queensland, authorities consider the admission process an important educative opportunity in which new lawyers reflect on professional and personal ethics, particularly when they conflict with a personal desire to hide embarrassing information. Even the process of admission is considered part of the ethical 'education' of applicants. Applicants are expected to reveal very personal and minor matters and are perhaps judged more harshly should they not do so. In contrast, NSW admission authorities appear to place greater responsibility on applicants themselves to self-filter and only disclose serious matters. The lack of any need to publish notice of an intention to seek admission in NSW means there is also no threat from third parties of further disclosures in that state. The experience of admission in NSW may consequently be less adversarial, invasive and paternalistic. It may provide a solution to the critiques offered by Rhode and other commentators. On the other hand, if there is some merit in the 'character test', it is arguable on the basis of 2009 national data that NSW potentially has more 'unsuitable' applicants slip through their admission process than in Victoria. At the lowest, it has arguably signalled to the public a negligible role for the character test in that state. We query whether local legislatures intended to produce substantively different results across Australia. The jurisdictions considered introduced a form of national legislation in the Model Laws. The relevant Acts allow for the common law to concomitantly govern in this area, which is ostensibly similar across Australia. We argue that one explanation for the discrepancies lies in the symbiotic relationship of the courts and those agencies who administer law. In Victoria, the expansive approach in the jurisprudence has engendered a rigorous process adopted by the admitting authority which has been communicated to those applying for admission. Until recently, there was no guidance from the authority and applicants had to rely on case law. This is generated when an applicant appeals a refusal of the Legal Profession Admission Board to issue them with the compliance certificate they require for admission or the NSW Bar Association or Law Society of New South Wales appeals a decision to grant a certificate.There appear to be fewer such appeals relative to the number of applications in NSW, which might actually flow from a less demanding admission process (requiring fewer disclosures) than in other jurisdictions.The NSW picture appears to be that only very significant matters will be relevant to disclose.
State courts almost exclusively refer to only local case law when deciding admission cases, making the influence of precedent from other parts of Australia opaque. This, together with the confluence of factors described above, has produced large disparities across the jurisdictions considered. At the very least, we argue that there is a need for a more transparent and consistent approach to admission in Australia. Some would say these differences are nothing to be concerned about and simply reflect the healthiest aspects of a federated state-based admission system. We disagree for a number of specific reasons.
First, we believe there is no justification for the lack of transparency that occurs in most states and territories as to applications processed each year. We applaud the detailed reporting that emanates from Western Australia and efforts of LACC. This not only provides transparency but also guides future applicants as to the sorts of matters that may require further explanation to admission authorities, and the type of procedural steps (decision on the papers, informal chat with the Convenor, or formal adversarial hearing) that they are likely to expect. We do not call for confidential information to be published. Rather we ask for reporting of key indicators such as how many applications are refused each year; generic descriptions of the reasons for denial; rates of disclosure by applicants, the general nature of such disclosures and how they are classified.
Second, we are concerned that, at the same time that the process lacks transparency, paradoxically, it lacks privacy. For instance, there are examples of the process being far from private. In a recent Victorian professional disciplinary case that identified the individual involved, the Supreme Court mentions oral hearings conducted by the admitting authority and its deliberations as to whether to admit the candidate over an incident of student misconduct. Despite the Board's concerns about character, the Court ultimately admitted the candidate. Thus it seems even matters which do not bar admission can haunt a person professionally and lead to a slippage of confidential information. Relatedly, we have particular concerns about what the perception of a lack of privacy might mean for disclosures relating to mental illness. We are also concerned about the apparently adversarial and invasive nature of such inquiries. We suggest that concerns about maintaining privacy are best dealt with by taking 'capacity' concerns out of the 'character' test. LACC makes a similar recommendation. As Bauer recommends, what is needed is close scrutiny of process.
Third, we are concerned about the lack of coherence and clarity concerning the implications for applicants revealing a history of mental illness. It appears that there are very different standards and practices across the three jurisdictions considered. Victorian, NSW and Queensland guidelines now state that:
if an applicant makes a full disclosure of a condition relevant to capacity and demonstrates that the condition is appropriately managed, it is highly unlikely that the disclosure will lead to an adverse assessment of the applicant's suitability for admission.
This form of clarification for future applicants is welcomed. However, applicants may read cases like XY v Board of Examiners as a continuing indication that mental illness disclosures will result in differential treatment. In this regime, there may yet be claims of unlawful discrimination as in the United States if decisions are made on the basis of status. While NSW and Queensland apply a different test, we remain concerned about the lack of certainty as to its scope, particularly in the light of Doolan v Legal Practitioners' Admission Board which provides no guiding principle.
Finally, we are concerned that the admission process discriminates so dramatically between law graduates depending upon the state in which they seek admission. If this becomes well known, it is foreseeable that there may be forum shopping. On the eve of uniform legislation in NSW and Victoria, we should take this opportunity to discuss this as a national issue. One approach is to consolidate the admission standards and process. Under the LPNL, the National Legal Services Board is empowered to decide who will be admitted by issuing 'compliance certificates' to the state court. The state courts would still retain a power to refuse to admit a person, but there would be a strong, public disincentive to act in a way that is unjustifiable as there is a requirement to report reasons. As this process is centralised, more anonymity for applicants can be seen to be, and actually, accorded. We concede that this structural change to admission may not be part of any enacted version of the LPNL next year. However, it provides a useful example of how a 'uniform' legislative approach could produce positive results. As it stands for the foreseeable future, applicants for admission across Australia will continue to be subject to variable approaches to their 'character', if and when they ask to join the legal profession.
