Little and The Council of the New South Wales Bar Association - [2024] AATA 497

Little and The Council of the New South Wales Bar Association [2024] AATA 497 (21 March 2024)
Division:GENERAL DIVISION
File Number: 2023/3171
Re:Timothy Little
APPLICANT

AndCouncil of the New South Wales Bar Association
RESPONDENT

File Numbers: 2023/3987 and 2023/8223
Re:Timothy Little
APPLICANT

AndVictorian Bar Inc
RESPONDENT

File Number: 2023/3990
Re:Timothy Little
APPLICANT

AndLegal Practice Board Western Australia
RESPONDENT

File Number: 2023/4932
Re:Timothy Little
APPLICANT

AndAustralian Capital Territory Bar Council
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones and Grant Pearson, Chairperson of the New Zealand Trans-Tasman Occupations Tribunal
Date:21 March 2024
Place:Melbourne

The decision of the Tribunal is to affirm the decisions under review.
...............................[sgd].........................................
Deputy President Britten-Jones and Grant Pearson, Chairperson of the New Zealand Trans-Tasman Occupations Tribunal
CATCHWORDS
Trans-Tasman Mutual Recognition Act 1997 (Cth) (TTMRA) – applicant registered as a barrister in New Zealand as an employee with a requirement to be supervised - whether applicant is entitled to be registered as a barrister in New South Wales, Victoria, Western Australia and the Australian Capital Territory by operation of the Trans-Tasman Mutual Recognition Act – consideration of the Trans-Tasman mutual recognition principle – applicant no longer registered as a barrister in New Zealand – whether current registration in New Zealand is required for applicant to be entitled to registration in Australian jurisdictions – whether the occupation of an employed barrister in New Zealand is an equivalent occupation to that of a barrister registered in Australian jurisdictions – whether applicant entitled to be registered by default under s20(4) of the TTMRA – decisions under review are affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)

Lawyers and Conveyancers Act 2006 (NZ)
Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (NZ)
Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008 (NZ)
Legal Profession Act 2006 (ACT)
Legal Profession (Barristers) Rules 2021 (ACT)
Legal Profession Regulation 2007 (ACT)
Legal Profession Uniform Law Application Act 2014 No 16 [NSW]
Legal Profession Uniform Law (NSW) No 16a of 2014 [NSW]
Legal Profession Uniform Conduct (Barristers) Rules 2015 [NSW]
Mutual Recognition Act 1992 (Cth)
Trans-Tasman Mutual Recognition Act 1997 (Cth)
Trans-Tasman Mutual Recognition Act 1997 (NZ)
Cases
Board of Examiners v Lawrence (2000) 100 FCR 255
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Commissioner for Fair Trading (NSW) v PCBQ [2022] FCA 59
Director-General of Social Services v Hales (1983) 47 ALR 281
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; (1979) 46 FLR 409
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; [2019] HCA 16
Little v NZLS [2022] NZCA 121
Medical Board (Qld) v Renton [2006] FCA 947; (2006) 152 FCR 566
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Re Dabas [2019] NZHC 1940
Re Johanson and Civil Aviation Safety Authority (2012) 127 ALD 195; [2012] AATA 239
Sande v Registrar, Supreme Court of Queensland (1994) 134 ALR 560
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Strachan v Victorian Building Authority [2019] AATA 4891
Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574
Victorian Building Authority v Andriotis; (2019) 268 CLR 168, [2019] HCA 22
Victorian Building Authority v Cau [2023] FCAFC 120
Secondary Materials
Explanatory Memorandum for the Trans-Tasman Mutual Recognition Bill 1996 (Cth)
REASONS FOR DECISION
Deputy President Britten-Jones and Grant Pearson, Chairperson of the New Zealand Trans-Tasman Occupations Tribunal
21 March 2024

This is an application made pursuant to the Trans-Tasman Mutual Recognition Act 1997 (Cth) (TTMRA or the Australian Act)[1] for review of decisions by the respondents. The applicant, Mr Little, has sought unsuccessfully to be registered as a barrister in New South Wales, Victoria, Western Australia and the Australian Capital Territory under the TTMRA on the basis that it is an equivalent occupation to that which he was registered for in New Zealand.
[1] All references to legislation are to the TTMRA unless otherwise stated.
Background to the Trans-Tasman Mutual Recognition Acts in Australia and New Zealand
Section 35 of the TTMRA provides for cooperation with the Trans-Tasman Occupations Tribunal (the New Zealand Tribunal). Pursuant to the power in s 35(3) of the TTMRA, the President of the Administrative Appeals Tribunal (the Australian Tribunal) invited the Chairperson of the New Zealand Tribunal to be included on the panel to hear this matter. Following acceptance of that invitation, the President of the Australian Tribunal directed that the New Zealand Chairman and Deputy President Britten-Jones constitute the Australian Tribunal for the purposes of this proceeding. The parties agreed that the hearing would proceed by video which facilitated participation by the Chairperson of the New Zealand Tribunal without the need to travel.
As far as we are aware, this is the first time that a member of the New Zealand Tribunal has been included on a panel to hear a matter in the Australian Tribunal. We are also not aware of any member of the Australian Tribunal sitting as part of the New Zealand Tribunal as provided for in the New Zealand Trans-Tasman Mutual Recognition Act 1997 (the New Zealand Act).
The purpose of s 35 of the TTMRA is to promote consistency between decisions made by the Australian Tribunal and the New Zealand Tribunal under their respective legislation. Consistency is facilitated by s 35(2) which provides that in making decisions under the TTMRA, the Australian Tribunal is to have regard to decisions of the New Zealand Tribunal. Section 35(4) of the TTMRA provides that the power to constitute a panel so as to include a New Zealand member is to be exercised in accordance with arrangements made from time to time between the Tribunals. In 1998 an arrangement was agreed between the then President of the Australian Tribunal, Justice Matthews, and Judge Doogue, the then Chairperson of the New Zealand Tribunal. The arrangement reflected significant enthusiasm for joint sittings, but it is apparent that that has not come to pass. It is hoped that the availability of video technology will facilitate further joint sittings in the future. In that regard, we note that Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024 (Cth) provides ongoing legislative support for continued cooperation after the expected abolition of the Australian Tribunal and upon the commencement of the Administrative Review Tribunal.
It is worth looking back to 1996 and noting some of the history in the Explanatory Memorandum of the Trans-Tasman Mutual Recognition Bill 1996 which became the Australian Act (the TTMRA). The outline provided:
TRANS-TASMAN MUTUAL RECOGNITION BILL 1996
OUTLINE
The purpose of this Bill is to enable the enactment of legislation applying uniformly throughout Australia for the recognition of regulatory standards adopted in New Zealand regarding goods and occupations.
The Northern Territory and the Australian Capital Territory are treated as States for the purposes of this Explanatory Note, and accordingly references to a State extend to either Territory except where otherwise stated.
The Bill forms part of a larger legislative scheme that involves the enactment of Bills by the States, the Commonwealth and New Zealand. The larger legislative scheme has an Australian component and a New Zealand component.
This Bill is concerned with the Australian component of the larger legislative scheme. The Trans-Tasman Mutual Recognition Bill 1996 of New Zealand is concerned with the New Zealand component of the legislative scheme. That Bill was introduced into the Parliament of New Zealand on 18 July 1996.
The Commonwealth, State and New Zealand Bills will implement the 1996 Trans-Tasman Mutual Recognition Arrangement. The purpose of the Arrangement is to give effect to a scheme implementing two mutual recognition principles between the parties relating to the sale of goods and the registration of occupations, consistent with the protection of public health and safety and the environment. The mutual recognition principles are as follows:
(a)if goods may be legally sold in New Zealand they may be sold in an Australian jurisdiction, and vice versa; and
(b)if a person is registered to practise an occupation in New Zealand, he or she will be entitled to practise an equivalent occupation in an Australian jurisdiction, and vice versa.
The objective of the Arrangement is to remove regulatory barriers to the movement of goods and service providers between Australia and New Zealand, and to thereby facilitate trade between the two countries. This will enhance the international competitiveness of Australian and New Zealand enterprises, increase the level of transparency in trading arrangements, encourage innovation and reduce compliance costs for business.
The Arrangement recognises that it builds on, and is a natural extension of, the 1992 Mutual Recognition Agreement between the Commonwealth and the States. Legislation implementing the Mutual Recognition Agreement has been proclaimed by the Commonwealth and all States and Territories. The Commonwealth legislation, the Mutual Recognition Act 1992, was proclaimed on 17 February 1993 and commenced on 1 March 1993.
At the time of signing the domestic Mutual Recognition Agreement the parties agreed to review in due course with New Zealand the potential benefits of participation by New Zealand in a scheme implementing mutual recognition principles.
It was subsequently agreed that the framework for mutual recognition reflected in the Australian Mutual Recognition Act 1992 should be the basis for a scheme implementing mutual recognition principles in New Zealand and Australian jurisdictions, with necessary changes to reflect the trans-Tasman nature of the scheme.
The Trans-Tasman Mutual Recognition Arrangement was finalised after the release of a discussion paper - A Proposal for the Trans-Tasman Mutual Recognition of Standards for Goods and Occupations - by the Council of Australian Governments and the Government of New Zealand in April 1995. Input was sought from industry, standards setting bodies, the professions and other groups in Australia and New Zealand. Some 142 written submissions were received. The comments received during the consultation process were taken into account in deciding upon the final lists of exemptions and exclusions from the Arrangement.
The Trans-Tasman Mutual Recognition Arrangement was signed by all Australian Heads of Government at the meeting of the Council of Australian Governments held on 14 June 1996. The Arrangement was subsequently signed by the Prime Minister of New Zealand on 9 July 1996.
The Parties to the Trans-Tasman Mutual Recognition Arrangement have agreed to submit to their respective Parliaments legislation implementing the Arrangement, and to use their best endeavours to secure the passage and bringing into force of legislation by early 1997. The participating parties to the Arrangement will be those which have secured the passage or the making of legislation implementing the Arrangement and caused that legislation to come into force and remain in force.
The Trans-Tasman Mutual Recognition Act 1997 (Cth)
The principal purpose of the TTMRA is to enact legislation with the intention of recognising within Australia regulatory standards adopted in New Zealand regarding goods and occupations. The legislation was, as contemplated by the Trans-Tasman Mutual Recognition Arrangement, entered into on 9 July 1996 between the Commonwealth of Australia, New Zealand, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory.[2]
[2] Trans-Tasman Mutual Recognition Act 1997 (Cth), s 3.
The Explanatory Memorandum for the Trans-Tasman Mutual Recognition Bill 1996 (Cth) provided that:[3]
The objective of the Arrangement is to remove regulatory barriers to the movement of goods and service providers between Australia and New Zealand, and to thereby facilitate trade between the two countries. This will enhance the international competitiveness of Australian and New Zealand enterprises, increase the level of transparency in trading arrangements, encourage innovation and reduce compliance costs for business.
[3] Explanatory Memorandum, Trans-Tasman Mutual Recognition Bill 1996 (Cth).
Part 3 of the TTMRA deals with the ability of a person who is registered in connection with an occupation in New Zealand to carry on an equivalent occupation in Australia. Section 16(1) outlines the Trans-Tasman mutual recognition principle:
The Trans-Tasman mutual recognition principle is that, subject to this Part, a person who is registered in New Zealand for an occupation is, by virtue of this Act, entitled after notifying the local registration authority of an Australian jurisdiction for the equivalent occupation:
(a)to be registered in the jurisdiction for the equivalent occupation; and
(b)pending such registration, to carry on the equivalent occupation in the jurisdiction.
It is not in dispute that the respondents are local registration authorities under the TTMRA with power to grant or refuse registration as a barrister.
Section 16(2) of the TTMRA provides for the exception to the mutual recognition principle, namely that:
… it does not affect the operation of laws that regulate the manner of carrying on an occupation in an Australian jurisdiction, so long as those laws:
(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the jurisdiction; and
(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
Occupation is defined in s 4 to mean ‘an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit and proper), and includes a specialisation in any of the above in which registration may be granted.’
Division 2 of Part 3 of the TTMRA deals with entitlement to registration.
Section 18 requires the applicant to give notification to the local registration authority:
Notification to local registration authority
(1) A person who is registered in New Zealand for an occupation may lodge a written notice with the local registration authority of an Australian jurisdiction for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the Trans‑Tasman mutual recognition principle.
Section 19 provides the entitlement to registration:
Entitlement to registration and continued registration
(1)A person who lodges a notice under section 18 with a local registration authority of an Australian jurisdiction is entitled to be registered in the equivalent occupation, as if the law of the jurisdiction that deals with registration expressly provided that registration in New Zealand is a sufficient ground of entitlement to registration.
(2)The local registration authority may grant registration on that ground and may grant renewals of such registration.
(3)Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in New Zealand.
(4)Continuance of registration is otherwise subject to the laws of the jurisdiction, to the extent to which those laws:
(a)apply equally to all persons carrying on or seeking to carry on the occupation under the law of the jurisdiction; and
(b)are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
(5)The local registration authority may impose conditions on registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person's registration in New Zealand or that are necessary to achieve equivalence of occupations.
(6)This section has effect subject to this Part.
Section 20 provides that the local registration authority must make a decision within one month of notice otherwise the person is automatically entitled to registration:
Action following notice
(1) Registration must be granted within one month after the notice is lodged with the local registration authority under section 18.
(2) When granted, registration takes effect as from the date the notice was lodged.
(3) However, the local registration authority may, subject to this Part and within one month after the notice was lodged, postpone or refuse the grant of registration.
(4) If the local registration authority neither grants the registration nor takes action under subsection (3) within the period of one month after the notice is lodged, the person is entitled to registration immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved.
Section 22 provides the reasons that an application may be refused:
Refusal of registration
(1) A local registration authority may refuse the grant of registration, if:
(a)any of the statements or information in the notice as required by section 18 are materially false or misleading; or
(b)any document or information as required by section 18(3) has not been provided or is materially false or misleading; or
(c)the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.
(2) A decision to refuse to grant registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Australian Tribunal, in which case the Tribunal may make whatever orders it considers appropriate.
Section 24 provides that a person who lodges a s 18 notice is, pending the grant or refusal of registration, taken to be registered as provided in s 19.
Division 4 of Part 3 of the TTRMA provides for equivalent occupations and contains a general principle at s 28 as follows:
(1) An occupation for which persons may be registered in New Zealand is taken to be equivalent to an occupation for which persons may be registered in an Australian jurisdiction if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).
(2) Conditions may be imposed on registration under this Part so as to achieve equivalence between occupations in different participating jurisdictions.
(3) This section has effect subject to any relevant declarations in force under this Division.
Background Facts
The four respondents (referred hereinafter respectively as NSW, VIC, WA and ACT) have refused to register the applicant as a barrister (the Refusal Decisions). Section 33 of the TTMRA provides that a decision under that Act may be reviewed by the Administrative Appeals Tribunal.
New South Wales

On 28 March 2023 the applicant served a notice under s 18 (s 18 notice) on NSW seeking registration as a barrister in New South Wales.[4]
[4] Exhibit 1, T17C, 93-97.
On 27 April 2023, NSW refused to grant registration on equivalency grounds.[5]
[5] Exhibit 1, T18A and 18B, 100-112.
On 8 May 2023, the applicant applied to the Tribunal for review of the refusal decision.[6]
[6] Exhibit 1, T21B.
The applicant contends that the correct or preferable decision is to set aside the decision of NSW and to remit the matter with directions as to assessment of equivalency of occupation.
NSW says refusal is the correct or preferable decision and adds as a further ground for refusal or dismissal that the applicant has no standing because he is no longer registered to practice in New Zealand, having let his practising certificate lapse on 30 June 2023.[7] NSW have applied under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for dismissal because the application is frivolous, vexatious, misconceived or lacking in substance.
[7] Exhibit 2, ST14B, 203.
Victoria
On 2 May 2023 the applicant served a s 18 notice on VIC seeking registration as a barrister in Victoria.[8]
[8] Exhibit 4, 22; Victorian Bar Inc Statement of Facts Issues and Contentions, 3 (n 14) “The Applicant does not raise any issue concerning the timing of lodgement of his Victorian Notice in this proceeding.”
On 29 May 2023, VIC exercised its power to postpone its decision under s 21(1)(d) of the TTMRA, but expressed the view that the applicant’s status as an employed barrister in New Zealand was not an equivalent occupation to a barrister in Victoria for the purpose of the TTMRA.[9] On 1 November 2023, VIC made a final decision to refuse to grant registration.[10] VIC adopts the submissions of NSW relating to equivalency and the lack of a New Zealand practising certificate.
[9] Exhibit 4, T12(b), 45.
[10] Exhibit 9; Exhibit 9A.
The applicant contends that the correct or preferable decision is to set aside the decision of VIC and to remit the matter with directions as to assessment of equivalency of occupation.
Western Australia
The applicant lodged a s 18 notice dated 28 April 2023.[11]
[11] Exhibit 7, T1(a), 3.
By letters dated 5 May and 2 June 2023, WA says that it refused the request for registration.[12] The applicant submits that WA did not refuse the request for registration under the TTMRA but rather he obtained an entitlement to registration under s 20(4) by default. This raises the question as to what is the decision under review.
[12] Exhibit 7, T2, 6 and T3, 10.
WA submits that the applicant does not satisfy the requirements of s 18 because he does not hold a New Zealand practising certificate. Further, WA submits that his occupation as an employed barrister in New Zealand is not equivalent to a WA barrister.
ACT
The applicant lodged his s 18 notice on 25 May 2023.[13]
[13] Exhibit 8, T7, 16.
A refusal decision was made on 21 July 2023.[14] The ACT accepts that the decision was outside of the one month period referred to in s 20 but says it could still refuse on equivalency grounds and for lack of a New Zealand practising certificate.
[14] Exhibit 8, T22, 65.
Issues
The key issue for determination is whether the applicant is entitled by operation of the TTMRA to be registered as a barrister in each of the four jurisdictions in which he has applied (the Australian jurisdictions). Some of the sub-issues for determination are common to the four applications. Others are not.
Common to all applications is the question as to whether the Refusal Decisions should be affirmed because:
(a)the applicant’s practising certificate entitling him to practise in New Zealand as a barrister lapsed on 30 June 2023 (the Issue of the Lapsed Practising Certificate); and
(b)the occupation for which the applicant seeks registration is not equivalent to the occupation for which the applicant was registered in New Zealand (and equivalency cannot be achieved through the imposition of conditions) (the Issue of Equivalency of Occupations).
With respect to the WA application, there is an issue as to whether the emails dated 5 May 2023 and/or 2 June 2023 should be construed as refusing the grant of the registration in accordance with s 20(3) of the TTMRA. If so construed, then those emails either individually or together constitute a reviewable decision and the issues on the WA application are the same as the common issues above. If not, then there is a further issue as to whether the applicant is entitled to registration pursuant to s 20(4) of the TTMRA (the s 20(4) Registration Issue).
With respect to the ACT application, it is conceded by the ACT that it failed to act within the one month period after the s 18 notice was lodged which gives rise to the s 20(4) Registration Issue. The ACT asserts that the Issue of the Lapsed Practising Certificate and the Issue of Equivalency of Occupations remain relevant to the s 20(4) Registration Issue.
Does the 5 May 2023 email and/or the 2 June 2023 email from WA constitute a reviewable decision?
It is convenient to deal with this issue before consideration of the other issues.
The applicant sent by ordinary post to WA his s 18 notice dated 28 April 2023 together with a copy of his New Zealand practising certificate and a statutory declaration dated 28 April 2023. This correspondence was received in the mail by WA on 2 May 2023.[15] The effect of ss 20(1) and (3) of the TTMRA is to require a response within one month after the s 18 notice is lodged. I accept WA’s submission as to the calculation of time that the day of the receipt of the notice is excluded and hence the period for a response ended on and included 3 June 2023.[16]
[15] Exhibit 17.
[16] See Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574, 580; and s 36 of the Acts Interpretation Act 1901 (Cth).
WA responded on 5 May 2023 (within the one month period) referring to the TTMRA and advising that “The Board cannot grant you a practising certificate …”[17] which the applicant, by return email, interpreted as “a refusal of registration under s 20(3) and s 22” of the TTMRA.[18] It is our view that the applicant’s interpretation at the time was entirely correct. In later correspondence on 2 June 2023, which was still within the one month period, WA confirmed the refusal to register under s 20(3) of the TTMRA.[19] We note that there was no particular form of refusal required by the TTMRA. All that was required was for WA, as the local registration authority, to refuse the grant of registration. Lockhart J in Director-General of Social Services v Hales,[20] said that “No narrow or pedantic approach is called for in determining whether a decision falls within the scope of review by the Administrative Appeals Tribunal” and that a decision “may include a declaration or statement which has a real practical effect although not altering rights or imposing liabilities.”
[17] Exhibit 7, T3, 10,
[18] Exhibit 20, 3.
[19] Exhibit 7, T4, 19.
[20] (1983) 47 ALR 281, 305-306.
We find that WA’s emails on 5 May and 2 June 2023 individually or together constituted a refusal to grant the applicant’s request for registration within the time period of one month as required by ss 20(1) and (3). The refusal to grant registration constitutes a reviewable decision by WA and s 20(4) has no application with respect to the WA matter.
The Issue of the Lapsed Practising Certificate
This is an issue in each of the four applications before the Tribunal, but it is slightly different for the ACT because there the issue must be considered as part of the s 20(4) Registration Issue. With respect to NSW and WA, the applicant’s request for registration had been refused under s 20(3) before 30 June 2023. With respect to VIC, the applicant’s request had been postposed under s 20(3) and was refused after 30 June 2023. We will now consider the impact of the applicant not renewing his New Zealand practising certificate which expired on 30 June 2023.
The applicant held a practising certificate which entitled him to practise as a barrister in New Zealand from 1 July 2022 to 30 June 2023.[21] In his s 18 notice to each of the four jurisdictions in Australia, the applicant stated that “I am registered for the occupation of barrister in New Zealand” and he provided a copy of his “current New Zealand practising certificate evidencing [his] existing registration”.[22] The practising certificate, issued by the New Zealand Law Society on 1 July 2022, confirmed that he was “enrolled as a Barrister and Solicitor of the High Court of New Zealand under the Lawyers and Conveyancers Act 2006 (NZ) and is entitled to practise as a Barrister until 30 June 2023”.[23] There is no dispute that as at the various dates of the applicant’s s 18 notices he was registered as a barrister and held a New Zealand practising certificate. However, the current position, which has applied since 1 July 2023, is that the applicant does not hold a New Zealand practising certificate and is no longer registered to practise as a barrister in New Zealand.
[21] Exhibit 1, T8, 66; Exhibit 4, T6, 24; Exhibit 7 T1(b), 4; Exhibit 8, T10, 20.
[22] Exhibit 1, T10, 70; Exhibit 4, T5, 23; Exhibit 7, T1(c), 3; Exhibit 8, T9, 19.
[23] Exhibit 1, T8, 66; Exhibit 4, T6, 24; Exhibit 7 T1(b), 4; Exhibit 8, T10, 20.
The applicant explained his conduct in a letter dated 15 August 2023:[24]
My substantive registration in NZ in the occupation entitling me to carry on practice there as a barrister ceased at midnight on 30 June 2023 as I did not seek to renew my registration under the TTMRA (NZ), nor did I apply for a practising certificate under the Lawyers and Conveyancers Act 2006 (“LCA”) for the 2023-2024 year.
[24] Exhibit 2, ST8A, 61.
The applicant contends that the fact that he is no longer registered to practise as a barrister in New Zealand is not relevant on a proper interpretation of the TTMRA which only provides for a requirement to be registered in New Zealand at the time of the notification under s 18 to the local registration authority. The question for determination by the Tribunal is whether there is an ongoing requirement to be registered up until the date of a decision.
NSW contends that the non-renewal and expiration of the applicant’s New Zealand employed barrister practising certificate means that the applicant no longer has standing to bring the proceedings and accordingly the application should be dismissed as frivolous, vexatious, misconceived or lacking in substance pursuant to s 42B(1)(a) of the AAT Act. NSW brought this application for summary dismissal prior to the hearing of the substantive application but we decided to adjourn consideration of it until after all the evidence was heard at the substantive hearing. NSW relied upon authorities in which a change of circumstances for an applicant resulted in a loss of standing because the application had been rendered futile. NSW argues that the applicant can no longer achieve registration as a barrister by operation of the TTMRA because his New Zealand registration has lapsed and his application became futile upon the applicant’s decision to not renew his New Zealand practising certificate. The determination of this issue will depend upon whether the applicant’s interpretation of the TTMRA is made out. Given that the matter has now proceeded to a final hearing, we consider it unnecessary to rule on the s 42B(1)(a) application.
The Role of the Tribunal
It is not unusual for the Tribunal to take into account evidence of events subsequent to the original decision, but the question as to the relevance of that evidence to the decision to be made by this Tribunal raises the question as to the role of the Tribunal on review to which we will now turn.
The review application is a hearing de novo, meaning a hearing afresh. The Tribunal has the ability to exercise all the powers conferred by the TTMRA on each of the respondents to come to a fresh decision.[25]
[25] Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31.
We will now discuss the relevant case law concerning the nature and scope of the Tribunal’s review.
In Drake v Minister for Immigration and Ethnic Affairs[26] (Drake No 1), Bowen CJ and Deane J provided guidance as to the question for determination that is before the Tribunal. Their Honours clarified that the Tribunal is subject to the same general constraints as the decision-maker, stating, at 589, that:
The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.
(emphasis added)
[26] (1979) 24 ALR 577.
This means that the Tribunal will make findings based on the material before it and is not restricted to the material that was before the respondents. Further, the Tribunal does not focus on whether the previous decisions of each of the respondents were correct. Rather, it will determine the correct or preferable decision based on the evidence and submissions of the parties at these proceedings.[27]
[27] Re Johanson and Civil Aviation Safety Authority (2012) 127 ALD 195; [2012] AATA 239, [28].
In the decision of Frugtniet v Australian Securities and Investments Commission,[28] Bell, Gageler, Gordon and Edelman JJ considered the jurisdiction conferred on the Tribunal by ss 25 and 43 of the AAT Act. Their Honours clarified that the Tribunal has the same powers and constraints as the decision-maker, and that the statutory question before the decision-maker marks the boundary of the Tribunal’s review powers:
51.… the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT's review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision.
(emphasis added, citations omitted)
[28] (2019) 266 CLR 250; [2019] HCA 16.
In a separate judgment in Frugtniet, Kiefel CJ, Keane and Nettle JJ explained that, subject to the statute in question, the Tribunal can consider new evidence that was not before the original decision-maker, including evidence of subsequent events, provided that they are relevant to decide the same statutory question that was before the original decision-maker:
15.Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide; really, as if the original decision-maker were deciding the matter at the time that it is before the AAT. The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker. As Kiefel J observed in Shi, identifying the question raised by the statute for consideration will usually determine the facts that may be taken into account in connection with the decision. The issue is one of relevance, to be determined by reference to the elements of the question necessary to be addressed in reaching a decision.
(emphasis added, citations omitted)
At this point, we note that s 43(1) of the AAT Act provides some guidance about the Tribunal’s role in undertaking merits review of a decision:
(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
(emphasis added)
Section 43(1) of the AAT Act was discussed in Shi v Migration Agents Registration Authority[29] by Kiefel J who said at [132] that “The nature of the review conducted by the Tribunal depends upon the terms of the statute conferring the right”. Her Honour went on to say that:
[133] Section 43(1) of the AAT Act provides for the powers that the Tribunal may exercise with respect to matters in respect of which it has jurisdiction. The exercise of the powers conferred by the sub-section is restricted to the Tribunal’s purpose, of reviewing the decision in question. … it is not possible to apply s 43(1) to the facts of any case without determining, ﬁrst of all, what is the decision under review. It may therefore be appreciated that the decision, and the statutory question it answers, should be identiﬁed with some precision, for it marks the boundaries of the review.
(citations omitted)
[29] (2008) 235 CLR 286.
Kiefel J observed at [142] of Shi that the Tribunal must address the same statutory question as the original decision-maker:
142.In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal’s general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.
(emphasis added, citations omitted)
In summary, the Tribunal is not at large and has the same powers and constraints as the original decision maker. The Tribunal must confine its review to the same statutory question that was before the original decision-maker. However, in doing so, it can consider new evidence that was not before the original decision-maker, including evidence of subsequent events that are relevant to the statutory question, provided that the statutory question does not change. In undertaking a de novo review on the merits, (subject to the statute in question) the Tribunal is not limited to the grounds, reasons or facts set out in the decision-maker’s reasons.
The Decisions under Review
The respondents have each made a decision to refuse the applicant’s request for a grant of registration as a barrister in their particular jurisdiction (the Refusal Decisions). It is the Refusal Decisions which are the subject of the applications for review.
The Statutory Question
What then is the statutory question that the Tribunal must resolve?
The question for the original decision-makers and on review for the Tribunal is whether the applicant is entitled to be registered as a barrister in the Australian jurisdictions. That question must be answered by reference to the Trans-Tasman mutual recognition principle in s 16(1) of the TTMRA and the provisions of Division 2 of Part 3 of the TTMRA which deal with “entitlement to registration” including:
(a)section 19(1) which creates an entitlement to registration “in the equivalent occupation” upon a person lodging a notice under s 18;
(b)sections 19(2) and 20(3) which provide respectively that registration may be granted or refused within one month;
(c)section 22(1) which provides three alternative bases on which a grant of registration may be refused including relevantly under s 22(1)(c) if the local registration authority “decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.”

Further, with respect to the ACT, there is an additional fact that it failed to respond to the applicant’s s 18 notice within the one month period prescribed by ss 20(1) and (3). It follows that the answer to the statutory question expressed above will need to take into account s 20(4) which provides an entitlement to registration at the end of one month and says that no objection may be taken to the applicant’s s 18 notice on any of the grounds on which refusal may be effected, except where fraud is involved.
Applicant’s contentions on the Issue of the Lapsed Certificate
The applicant contends that the Tribunal should grant his application under the TTMRA to be registered as a barrister and to receive a practising certificate. The applicant claims to have satisfied the “Entitlement to registration” in Division 2 of Part 3 of the TTMRA for the following reasons. He has lodged a written notice pursuant to s 18(1) which complies with the requirements in s 18(2) of the TTMRA. Under s 19(1) a person who lodges a notice under s 18 with a local registration authority is entitled to be registered in the equivalent occupation. Registration must be granted within one month after the notice is lodged and, if not, the person is entitled under s 20(4) of the TTMRA to registration immediately at the end of that period.
With respect to VIC, NSW and WA, the local registration authority responded within the one month period provided for in s 20. The applicant contends that none of the grounds for refusal in s 22(1) are made out and therefore the correct or preferable decision is to grant the request for registration. More particularly, the applicant says that there was nothing materially false or misleading in his s 18 notice or in his practising certificate provided under s 18(3). Further, the applicant contends that the relevant occupations are equivalent because the activities carried out under each registration are substantially the same or would be substantially the same upon the imposition of appropriate conditions: see s 28(1).
With respect to the ACT, the local registration authority did not grant or refuse to grant registration within the one month period provided for in ss 20(1) and (3). Therefore, the applicant says that by operation of s 20(4) he is entitled to registration at the end of that one month period. The applicant says that his entitlement cannot be overridden by any of the factors in s 22(1). The effect of this submission is that if the local registration authority fails to respond within one month, then neither the local registration authority or the Tribunal standing in its shoes on review can refuse to grant registration. The entitlement provided for in s 20(4) is absolute or, as Mr Little said, operates like a guillotine.
Consideration of the Issue of the Lapsed Certificate
What then is the impact of the applicant no longer being registered as a barrister in New Zealand?
NSW contends that the applicant lacks standing because he is no longer registered as a barrister in New Zealand and therefore cannot achieve registration in an Australian jurisdiction. VIC contended similarly that the Tribunal lacks power to grant registration for the same reason. The applicant contends, as set out above, that it makes no difference to the answer that should be given to the statutory question by the Tribunal.
For the reasons that follow, we consider, first, that the Tribunal may take into account that the applicant is no longer registered as a barrister in New Zealand and, second, that the lapsed certificate does make a difference and has the result that the applicant is no longer entitled to registration in the Australian jurisdictions. As to the first matter, the Tribunal must address the same question as the respondents (the original decision-makers) were required to address, but in doing so, it is our view that the Tribunal may take into account that the applicant is no longer registered as a barrister in New Zealand because it does not change the nature of the decision or the question that was before the original decision-makers. That question is whether the applicant is entitled to be registered as a barrister in the Australian jurisdictions. The nature of the decision to be made by the Tribunal remains the same and is not altered by taking into account this additional matter. It would be an odd result if the Tribunal in effect was required to ignore the fact that the applicant is no longer registered in New Zealand which as we find below is central to the operation of the Trans-Tasman mutual recognition principle. There is an implication in the TTMRA that the decision is to be made on the basis of all the material available to the decision-maker.[30]
[30] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 45, cited in Shi v Migration Agents Registration Authority [2008] HCA 31 at [42].
We now turn to the second matter which requires considerably longer analysis.
The applicant claims an entitlement to registration in Australia because he lodged a s 18 notice and he would therefore appear to satisfy s 19(1). A prerequisite for the exercise of power to grant, refuse or postpone registration is that the applicant has lodged a s 18 notice. A s 18 notice may only be lodged by “A person who is registered in New Zealand for an occupation”, which in this case is the occupation of a barrister. The s 18 notice must, inter alia, state that the person is registered for the occupation in New Zealand. In other words, before the original decision maker can exercise a power to grant or refuse registration under ss 19(2) or 20(3), it must receive a written notice from a currently registered barrister. The applicant satisfied that requirement when he lodged his s 18 notices. The lapsing of the certificate does not alter the fact that the applicant lodged notices in the form required by s 18.
Further, the applicant contends that his registration should not be refused pursuant to ss 22(1)(a) or (b) because there was nothing misleading or false in his s 18 notice and accompanying documents. (There remains the issue of equivalency of occupations but we will come back to that later in these reasons.) It was not submitted by the respondents that the statement in the s 18 notices that he is registered as a barrister in New Zealand became misleading upon the lapsing of his certificate. In the s 18 notices, the applicant states that he seeks registration for the equivalent occupation “to that which I am registered for in New Zealand”.[31] It could be argued that by making that statement the applicant was impliedly representing that he would remain registered in New Zealand as at the date of any future registration in the Australian jurisdictions. If that argument was accepted, then one of the statements in the s 18 notices would be misleading, which would provide a ground to refuse the grant of registration. However, that argument was not made before us, and it may be that it would have failed in any event because there was no dispute that the statements were accurate at the date of the statutory declarations and the practising certificate accompanying the s 18 notices made it clear that the applicant was only entitled to practise as a barrister until 30 June 2023. Without finally considering this issue, we will proceed on the basis that the applicant provided no false or misleading statements, information or documentation in his s 18 notices and therefore there was no basis to refuse registration pursuant to ss 22(1)(a) or (b) on their own.[32]
[31] Exhibit 1, T10, 70; Exhibit 4, T5, 23; Exhibit 7, T1(c), 3; Exhibit 8, T9, 19.
[32] See also the decision of Strachan v Victorian Building Authority [2019] AATA 4891 (‘Strachan’) in which Senior Member Furnell rejects at [85] to [87] a submission that a statement in the equivalent of a s 18 notice as to registration was not rendered materially false or misleading despite a later cessation of registration.
Division 2 of Part 3 of the TTMRA does not provide for the situation where the New Zealand registration ceases before a decision is made to grant registration under s 19(2) or to postpone or refuse registration under s 20(3). This is not surprising given the short time frame of one month after lodgement of a s 18 notice within which there must be a grant, postponement or refusal of registration.
There is an express reference to what happens if registration ceases in New Zealand in s 19(3) which says that once a person is registered, the entitlement to registration continues, whether or not registration ceases in New Zealand. Section 19(3) suggests that Parliament did not intend for the entitlement to registration to “survive cessation of registration” in New Zealand before substantive registration is granted.[33] The provision assumes that the applicant is registered in New Zealand up until the registration is granted by the local registration authority and is consistent with our interpretation that the registration is New Zealand must continue up until registration in the Australian jurisdiction. It is only thereafter that an applicant could allow the registration in New Zealand to lapse.
[33] Strachan [2019] AATA 4891, [55].
Another provision of the TTMRA relevant to what happens if registration ceases in New Zealand is s 21(1)(c) which provides that a local registration authority may postpone the grant of registration if the circumstances of the person lodging the notice have materially changed since the date of the notice or the date it was lodged. It can safely be assumed that a cessation of registration would amount to a material change in circumstances. Therefore, there is a power to postpone the grant of registration if the applicant is no longer registered in New Zealand. Nettle and Gordon JJ considered an equivalent provision in Victorian Building Authority v Andriotis[34] at [126]:
[126] Moreover, the power of postponement under s 22 is not only of assistance to the second State. It also provides the first State with time to take any necessary disciplinary action under the laws of the first State. Those actions could, for example, include suspending or revoking the applicant’s registration in that State, thereby removing the basis of the applicant’s entitlement to registration in the second State under the Mutual Recognition Act.
[34] (2019) 268 CLR 168; [2019] HCA 22 (‘Andriotis’).
It is apparent from what Nettle and Gordon JJ said in Andriotis that if after lodgement of the s 18 notice but before the grant of registration in Australia, an applicant ceased being registered in New Zealand, then that would remove the basis of the applicant’s entitlement to registration in Australia. In that situation the applicant would no longer be entitled to a grant of registration and therefore the Tribunal would have no basis on which it could grant registration.
There is one further provision relevant to what happens if registration ceases in New Zealand, namely s 25(4) in Division 3 of Part 3 which deals with interim arrangements. It provides that a person’s deemed registration in an Australian jurisdiction ceases if the person ceases to be substantively registered in every other participating jurisdiction (which includes New Zealand). This has no application on the facts of this case but it provides an example of an ongoing requirement of registration in New Zealand as a basis for registration in an Australian jurisdiction.
It would be incongruous with the short time frames provided in Division 2 of Part 3 of the TTMRA if the applicant could have given up his registration in New Zealand back on 30 June 2023 and then expect to use that registration as a basis for a decision more than six months later by the Tribunal in 2024. The primacy of registration in New Zealand would be significantly diminished if there could be such a long gap between registration in New Zealand and registration in an Australian jurisdiction.
The Tribunal interprets Part 3 of the TTMRA as providing for an ongoing requirement of registration after lodgement of the s 18 notice if an applicant wishes to remain entitled to a grant of registration. Contrary to our interpretation, the applicant adopts a literal interpretation of s 19(1) namely that an entitlement to registration in an Australian jurisdiction arises upon the applicant lodging a valid s 18 notice irrespective of whether he maintains his registration in New Zealand after the lodgement of that notice.
In CIC Insurance Ltd v Bankstown Football Club Ltd,[35] Brennan CJ, Dawson, Toohey and Gummow JJ summarised the “modern approach to statutory interpretation” as follows:
[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd [ (1986) 6 NSWLR 363 at 388 ], if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.
[35] [1997] HCA 2; (1997) 187 CLR 384, 408.
Our interpretation is consistent with the context and purpose of the TTMRA. Section 15(2) provides that Part 3 of the TTMRA “deals with the ability of a person who is registered … in New Zealand to carry on an equivalent occupation in Australia.” It is implicit from s 15(2) that the purpose of Part 3 of the TTMRA is to enable a person who is registered in New Zealand to carry on an equivalent occupation in Australia. The applicant does not fit within that purpose because he is not registered as a barrister in New Zealand. Section 16(1) refers again to a person who is registered in New Zealand. The use of the present tense in these provisions suggests an ongoing requirement of registration.[36] In Andriotis, Kiefel CJ and Bell and Keane JJ said that “The mutual recognition principle accepts that registration for an occupation in the first State is sufficient for registration in the Second State”.[37] This suggests that the obligation to be registered continues up to the date of any registration being granted in an Australian jurisdiction.[38] If it were otherwise, then an applicant could simply register in New Zealand as at the date of the s 18 notice and then deregister immediately thereafter which would defeat the purpose of the Trans-Tasman mutual recognition principle.
[36] Shi v Migration Agents Registration Authority [2008] HCA 31, [48].
[37] [2019] HCA 22, [24].
[38] See also Andriotis, [129] (Nettle and Gordon JJ).
The applicant’s contentions adopt a literal approach to s 19(1) which results in an interpretation which is contrary to the purpose of the TTMRA. Those contentions focus exclusively on the procedure outlined in Division 2 of Part 3 of the TTMRA and pay insufficient regard to the Trans-Tasman mutual recognition principle in Division 1 of Part 3 of the TTMRA. Gageler J (as His Honour then was) said in Andriotis that this principle operates as “a statutory rule that forms a fundamental tenet of the statutory scheme of which it forms part”[39] and “must therefore be read as having an immediate legal operation.”[40] The principle in s 16(1) entitles a person who is registered in New Zealand for an occupation to be registered in the Australian jurisdiction for the equivalent occupation. The entitlement to registration by operation of the provisions in Division 2 of Part 3 of the TTMRA is based upon registration in New Zealand. Gageler J in Andriotis explained the relationship between the mutual recognition principle in s 16(1)(a) and the detailed provisions in Division 2 of Part 3 as follows:
[72] The entitlement of a person who is registered for an occupation in one State to obtain registration for an equivalent occupation in another State … is, accordingly, an entitlement the content of which must be understood to conform to the entitlement that is worked through in the detailed provisions of Div 2 of Pt 3.
[39] Andriotis, [70] (Gageler J).
[40] Ibid, [71] (Gageler J).
Nettle and Gordon JJ in Andriotis refer to “the primacy of registration in the first State [New Zealand] being a sufficient ground of entitlement to registration in the second State”[41] [Australia].
[41] Ibid, [118].
Section 19(2) of the TTMRA confers power to grant registration but has effect subject to Part 3[42] which relevantly includes the Trans-Tasman mutual recognition principle in s 16(1). The Tribunal may exercise the power to grant registration subject to the same constraints that applied to the original decision maker. Relevant constraints on the power to refuse registration are expressly provided for in s 22(1) of the TTMRA but would also include any constraints arising from a proper reading of the Trans-Tasman mutual recognition principle. We note that s 19(2) uses the word “may” and not “must” which suggests there is no absolute obligation on the local registration authority to grant registration on the ground in s 19(1). The High Court in Andriotis considered whether the use of the word “may” gave rise to a discretion. While there were differing approaches within the four sets of reasons provided, it is clear that if there is any discretion at all it is limited by the statutory provisions of the TTMRA. Kiefel CJ and Bell and Keane JJ said that s 19(2) gives a local registration authority power to grant registration under the TTMRA on one “ground”, the ground referred to in s 19(1), namely registration in New Zealand.[43] Nettle and Gordon JJ said that, “if the statutory conditions are met, the local registration authority must grant the registration.”[44] The applicant relies on the absence of a general discretion in support of his argument that the Tribunal, standing in the shoes of the local registration authorities, must grant the registration and, conversely, cannot refuse under ss 22(1)(a) or (b). However, the High Court in Andriotis was not considering a situation where the applicant was not registered in the relevant occupation in the first State. In the case before us, it is not a question as to whether the Tribunal should refuse to grant registration under s 22(1) after an entitlement to registration has arisen. Rather, there is an anterior question as to whether entitlement no longer exists and therefore at the time of us making a review decision there is no entitlement to registration on a proper reading of s 19(1) together with ss 15(2) and 16(1) of the TTMRA.
[42] Section 19(6) of the TTMRA.
[43] Andriotis, [44].
[44] Ibid, [109].
The applicant’s claim to be entitled to registration does not take into account the requirement in the Trans-Tasman mutual recognition principle that the entitlement to registration in Australia is only bestowed upon a person who is registered in New Zealand. Because of the primacy of registration in New Zealand to any entitlement to registration in Australia, the fact that the applicant has lodged a s 18 notice is not a sufficient basis for registration in Australia. The ‘person’ referred to in s 19(1) is not entitled to registration because he has not satisfied the Trans-Tasman recognition principle by not being registered in New Zealand.
The undisputed fact that the applicant is no longer registered as a barrister in New Zealand means that he falls at the first hurdle. The failure to satisfy this fundamental requirement means that the applicant is not entitled to be registered as a barrister in any of the Australian jurisdictions. It follows that the Refusal Decisions should be affirmed because they are the correct or preferable decisions on the evidence before the Tribunal.
Consideration of the Issue of the Lapsed Certificate in the ACT Matter

Separate consideration needs to be given to the ACT because the applicant became entitled to registration one month after lodging his s 18 notice by operation of s 20(4) which provides:
(4) If the local registration authority neither grants the registration nor takes action under subsection (3) within the period of one month after the notice is lodged, the person is entitled to registration immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved.
The applicant posted his s 18 notice on 25 May 2023. He contends that it would have arrived in the ordinary course of the post by no later than 31 May 2023 and, accordingly, that the one month period in s 20(4) commenced on 31 May 2023 being the date the s 18 notice was lodged with the ACT.[45] The ACT did not respond within the statutory one month period and therefore an entitlement to registration arose on or before 1 July 2023. During the course of oral submissions, counsel for the ACT accepted that the ACT had not responded within the statutory one month period.
[45] Exhibit 8, T21, 55-58.
Before considering what is the correct or preferable decision in the ACT matter, it is necessary to determine what is the decision under review. The application for review of a decision lodged with the Tribunal on 6 July 2023 referred to an immediate entitlement to registration arising under s 20(4).[46] As set out above, the date of that entitlement to registration would be 1 July 2023 at the latest which is one month after the applicant lodged his s 18 notice with the ACT. The ACT contends that it made a reviewable decision on 21 July 2023 when it notified the applicant of its refusal to grant registration as a barrister. We accept the contention put by the applicant that a reviewable decision arose on or before 1 July 2023 because of the failure by the ACT to make a decision by that date. By operation of s 33(2) of the TTMRA a decision has the meaning as in the AAT Act which includes a deemed decision under s 25(5) of the AAT Act.[47] The failure to grant registration at the end of the one month period amounted to a deemed decision and is a reviewable decision. It is this decision which is capable of being the subject of review.
[46] Ibid, 57.
[47] Strachan, [39] and [40].
We note that if the date of the deemed decision is 1 July 2023, then that is the same date from which the New Zealand certificate lapsed. The Tribunal must stand in the shoes of the decision maker and decide what is the correct or preferable decision on the review of that decision. Consistent with our approach taken earlier in these reasons, the Tribunal is not confined to the facts as they were as at the date of the lodgement of the s 18 notice, but rather may take into account subsequent events such as the fact that the applicant ceased being registered to practice as a barrister from 1 July 2023. The ACT became aware of the fact of non-registration by an email from the New Zealand Law Society dated 17 July 2023 which stated that the applicant “does not hold a current practising certificate in New Zealand, but he did hold a practising certificate as a barrister on 25 May 2023.”
We note the applicant’s contention that he had already become entitled to registration upon the lodgement of his s 18 notice on 31 May 2023 by operation of s 19(1). In Board of Examiners v Lawrence,[48] French J spoke of the entitlement to registration that arises by operation of s 19(1) and s 20(4). His Honour said with respect to the equivalent provisions in the Mutual Recognition Act1992 (Cth):
[45] The question arises what is the nature of the "entitlement to registration" referred to in s21(4) which Mr Lawrence enjoyed by effluxion of time. There is a pre-existing entitlement which arises upon lodgment of the s19 notice. It is created by s20(1) and it is the entitlement "to be registered in the equivalent occupation, as if the law of the second State which deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration". The entitlement to "registration immediately" conferred by s21(4) must be more than that created at lodgment.
[48] (2000) 100 FCR 255 (‘Lawrence’), [45].
It is apparent that the content of the entitlements that arise under s 19(1) and s 20(4) differ in a way set out in the statute. The entitlement to registration arising under s 19(1) can be overridden, or at least impacted, by the matters listed in ss 21 and 22. The entitlement to registration arising under s 20(4), considered alone, is more absolute and, on the applicant’s contention, can only be overridden where fraud is involved. In Lawrence, French J explained further:
…One of the grounds upon which a grant of registration may be postponed in the ordinary course is that the occupation in which registration is sought is not an equivalent occupation (s22(1)(d)). But that ground is not available to justify refusal or postponement of the application where s21(4) applies. By virtue of s21(4) the question whether the occupation in which registration is sought is an equivalent occupation appears to be foreclosed, as a ground for postponement or refusal of the application, by the failure of the Board to take action within one month after notification. That does not prevent the imposition of conditions on the relevant certificate if permitted by the Act and Regulations so that it may properly be said to relate to an equivalent occupation. To do that is merely to give effect to the entitlement. It does not involve a postponement or refusal of the qualification.[49]
[49] (2000) 100 FCR 255, [45].
We consider that the entitlement to registration arising under s 20(4) must be considered by reference to context and purpose to determine the meaning of the entitlement. For the reasons applied to a consideration of the meaning of entitlement in s 19(1), the entitlement in s 20(4) is only bestowed upon a person who is registered in New Zealand as a barrister as at the date of the Tribunal’s decision. Whilst different entitlements arise under ss 19(1) and 20(4), they must both be read together with ss 15(2) and 16(1) which reflect the primacy given by the TTMRA to registration in New Zealand. The applicant claims he gained the benefit of deemed registration because ACT did not make a decision. We have concluded that by then, ACT could not have granted registration and the application before it was overtly outside the statutory requirements for a viable application under the legislation. We consider, even if the ACT’s decision is deemed to have been made prior to the date that the New Zealand certificate lapsed, that on review of that decision the Tribunal may take into account the lapsed certificate as a basis for affirming the refusal decision. There is no need to establish fraud because the person referred to in s 20(4) is not entitled to registration because he has not satisfied the Trans-Tasman recognition principle by not being registered in New Zealand.
The failure of the applicant to satisfy the Trans-Tasman mutual recognition principle because of his lapsed practising New Zealand practising certificate as at the date of the decision of the Tribunal means that the applicant is not entitled to a grant of registration in the ACT. The correct or preferable decision would be to set aside the deemed decision and substitute it with a decision refusing to grant the applicant registration as a barrister in the ACT. This has the same effect of affirming the decision that the ACT made on 21 July 2023.
Conclusion on the Issue of the Lapsed Certificate
We have found that the applicant is not entitled to be registered as a barrister in the Australian jurisdictions and therefore that the Refusal Decisions will be affirmed. This finding is determinative of the applications for review lodged by the applicant. Nevertheless, the Tribunal will consider below the further issue as to equivalency of occupations.
The Issue of Equivalency of Occupations
The issue of equivalency requires some analysis of the regimes that apply for barristers in New Zealand and in the relevant jurisdictions in Australia. Before carrying out that analysis, we will consider the separate position of the ACT who failed to respond to the applicant’s s 18 notice within the one month required by s 20. The applicant contends that s 20(4) operates such that the ACT is precluded from raising the Issue as to Equivalency of Occupations as a reason for refusal pursuant to s 22(1) of the TTMRA. For the reasons set out below, we accept the applicant’s contention but confirm that nevertheless, the applicant did not become entitled to registration as a barrister in the ACT because he did not satisfy the Trans-Tasman mutual recognition principle.
Is the Issue of Equivalency of Occupations Available as a Ground of Refusal for the ACT even if s 20(4) operates?
The ACT contended that it must be permissible to enquire into the Issue as to Equivalency of Occupations so as to determine if there was a valid s 18 notice. Otherwise, an applicant could seek registration in Australia as an electrician, for example, despite only being registered as a plumber in New Zealand and if the local registration authority in Australia failed to respond within one month as required by s 20(4) then the applicant would be entitled to be registered as an electrician and it would be impermissible to refuse on the ground of equivalency of occupations. The answer to that extreme example may be that there would be no valid s 18 notice on those facts and therefore the requirement under s 18(1) to lodge a written notice would not be satisfied. In the case before the Tribunal, the applicant stated in his s 18 notice that he was registered in New Zealand as a barrister and that he sought to be registered as a barrister in Australia. It could not be said that there was a failure to lodge a valid s 18 notice on equivalency of occupation grounds. If the applicant said he was registered as a barrister and was seeking registration as an accountant then that would be a different matter.
Section 20(4) provides that if the required action is not carried out within one month, no objection may be taken to registration on any of the grounds on which refusal or postponement may be effected, except where fraud is involved. Those grounds for postponement or refusal are set out in ss 21 and 22 and include where the local registration authority decides that the occupation in which registration is sought is not an equivalent occupation. As set out earlier in these reasons, French J confirmed in Lawrence that:
…One of the grounds upon which a grant of registration may be postponed in the ordinary course is that the occupation in which registration is sought is not an equivalent occupation (s22(1)(d)). But that ground is not available to justify refusal or postponement of the application where s21(4) applies. By virtue of s21(4) the question whether the occupation in which registration is sought is an equivalent occupation appears to be foreclosed, as a ground for postponement or refusal of the application, by the failure of the Board to take action within one month after notification. That does not prevent the imposition of conditions on the relevant certificate if permitted by the Act and Regulations so that it may properly be said to relate to an equivalent occupation. To do that is merely to give effect to the entitlement. It does not involve a postponement or refusal of the qualification.[50]
[50] (2000) 100 FCR 255, [45].
In the circumstances where the ACT did not respond within the one month period provided for in s 20(4), we find that the ACT cannot rely upon its contention in relation to the Issue of Equivalency of Occupations. The decision of Lawrence makes it clear that that issue is foreclosed as a ground for refusal. We accept the applicant’s contention in that regard. It follows that if we are wrong about the Issue of the Lapsed Practising Certificate, then the Tribunal would have found that the applicant was entitled to registration immediately at the end of the one month period after lodgement of the s 18 notice. In such a situation where the entitlement to registration arises by operation of s 20(4), the Tribunal would have needed to decide whether conditions were to be imposed on the registration for the purpose of achieving equivalence between the occupation as a barrister for which registration was sought in the ACT and the occupation as a barrister for which the applicant had been registered in New Zealand.[51] Given that the Tribunal has found against the applicant on the Issue of the Lapsed Certificate, the Tribunal will not take that additional step with respect to conditions as part of these reasons. A further reason for not determining conditions is that it is likely that the Tribunal would have asked for further submissions on what conditions if any were appropriate to achieve equivalency.
[51] Commissioner for Fair Trading (NSW) v PCBQ [2022] FCA 59, [7].
The Occupation of a Barrister in New Zealand
Ms Juliet Philpott is an Acting Registrar who swore an affidavit on behalf of the New Zealand Law Society.[52] Ms Philpott deposed to the regulatory scheme for the regulation of lawyers in New Zealand under the Lawyers and Conveyancers Act 2006 (NZ) (the NZ Act), the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008 (NZ) (the NZ Practice Rules Regulations) and the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (NZ) (the NZ Conduct Rules). In this section of our reasons, we have adopted much of the summary of the regulatory scheme provided by Ms Philpott, noting that her evidence was not challenged in cross examination. Under this scheme, “there are two steps involved in the process of becoming entitled to practice as a lawyer in New Zealand”:[53]
(a)admission as a barrister and solicitor of the High Court of New Zealand; and
(b)obtaining a practising certificate from the New Zealand Law Society.
[52] Exhibit 19.
[53] Little v NZLS [2022] NZCA 121, [31] and [61]-[63].
Under the NZ Act a “lawyer” is a person who holds a current practising certificate. A person is eligible to hold a practising certificate if they meet the requirements set out in regulation 4 of the NZ Practice Rules Regulations.[54]
[54] Exhibit 19, [4]-[5].
There are two types of practising certificate for lawyers:[55]
(a)a “barrister” practising certificate, held by barristers; or
(b)A “barrister and solicitor” practising certificate, held by solicitors, including in-house lawyers.
[55] Ibid, [6].
The person applying for the practising certificate must choose the type of practising certificate they are applying for – either a “barrister and solicitor” or “barrister” practising certificate.[56] In Little v New Zealand Law Society,[57] the Court of Appeal of New Zealand confirmed that:
A practising certificate may authorise a lawyer to practice on their own account as a barrister and solicitor or as a barrister; or may only permit them to practice as an employee barrister and solicitor or employed barrister.
[56] Ibid, [7].
[57] [2022] NZCA 121, [37].
It follows that the New Zealand Law Society may issue a barrister’s practising certificate which entitles the holder to practice as an employee.
The combined effect of s 9 and s 30 of the NZ Act is that there are two modes of practice under the NZ Act:[58]
(a)“practice on own account”; or
(b)“practice as an employed lawyer”.
[58] Exhibit 19, [9].
In Re Dabas,[59] the High Court of New Zealand was asked to determine an application made under the New Zealand TTMRA by a solicitor who held a practising certificate issued by the Queensland Law Society authorising him to engage in supervised legal practice. The legislative regimes of New Zealand and Queensland were compared by Cull J, her honour explaining:
[24] There are two types of practising certificates issued in New Zealand, either as a barrister, or as a barrister and solicitor; and two categories of those two types of practising certificates, either in practice on own account, (which is equivalent to an unrestricted principle practising certificate in Australia) or as an employee (which is equivalent to a restricted practising certificate with a condition regarding supervision). …
[25] Although statutory conditions are not specifically stated on the physical practising certificate itself, equivalent restrictions apply under the provisions of the LCA and the associated rules and regulations.
[26] Under s 30 of the LCA, no lawyer may commence practice on own account unless approved to do so by the Law Society or the High Court. In order to be approved to practice on own account, an applicant must meet the requirements set out in regulation 12 (or regulation 13 if applying to the High Court for leave to practice on own account) of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008.
[59] [2019] NZHC 1940.
Regulation 12 of the NZ Practice Rules Regulations sets out the criteria to practise on one’s own account.[60] In order to be approved to practise on your own account as either a barrister sole or barrister and solicitor, a lawyer must, amongst other things:
(a)satisfy the New Zealand Law Society that they are suitable to practise on own account taking into account all relevant considerations including the nature and extent of their legal experience, how they intend to practise on own account and the area of law they intend to practise in;
(b)show that they meet the relevant criteria, including being able to show:
(i)they have had at least three years relevant legal experience in New Zealand or can otherwise establish special circumstances;
(ii)they have completed mandatory educational requirements (in practice this is fulfilled by successful completion of the “Stepping Up Course”).
[60] Exhibit 19, [16].
Each application to practice on one’s own account is assessed on an individual basis by the New Zealand Law Society.[61] The process includes the assessment of references in support of the lawyer’s application and (usually) a formal interview of the candidate by the Law Society.
[61] Ibid, [17].
If a person is not approved to practise on his or her own account, he or she is only eligible to hold a practising certificate as an employed lawyer.[62] An employed lawyer may practise as a barrister or a barrister and solicitor depending on the type of practising certificate they hold.[63] The effect of this and ss 9 and 10 of the NZ Act is that an employed lawyer may only provide legal services in the course of his or her employment by another lawyer or law firm, or as an in-house lawyer.
[62] Ibid, [19].
[63] Ibid, [20].
An employed lawyer is engaged under an arrangement consistent with an employment arrangement and subject to the applicable employment related legislation.[64] This applies whether the lawyer is practising as an employed barrister, solicitor or in-house lawyer.
[64] Ibid, [21].
The New Zealand Bar Association on its website provides that junior barristers may be employed by other barristers.
Under rule 11.1 of the NZ Conduct Rules:
A lawyer practising on their own account must take all reasonable steps to ensure that –
(a)the operation of the law practice (including separate places of business) is at all times competently supervised and managed by a lawyer who is practising on their own account; and
(b)the conduct of all persons engaged or employed by the law practice is at all times competently supervised and managed by a lawyer who is practising on their own account.
The level of supervision required of an employed lawyer (whether employed barrister or barrister and solicitor) will depend on the specific circumstances of a situation.[65] Conduct indicating a lawyer is acting outside their permitted scope of practice under the NZ Act, would be treated as a complaints and disciplinary matter to be investigated and addressed under the disciplinary procedures established in Part 7 of the NZ Act.[66] Similarly, a failure by a lawyer practising on their own account to competently manage and supervise the operation of their practice (including people employed or engaged by the lawyer) is a conduct matter for which a lawyer may be disciplined.
[65] Ibid, [23].
[66] Ibid, [24].

Chapter 14 of the NZ Conduct Rules sets out the rules applicable to barristers. Rules 14 to 14.3 provide:
14 The legal work of a barrister may be undertaken by a lawyer practising either as a barrister and solicitor or as a barrister sole.
14.1 A lawyer who holds a practising certificate as a barrister and solicitor must not hold himself or herself out as practising as a barrister sole.
Practice as barrister sole
14.2 A lawyer who holds a practising certificate as a barrister sole must not—
(a)practise as a solicitor; or
(b)carry out the transactional aspects of conveyancing; or
(c)act as a general agent or attorney in respect of a client’s affairs; or
(d)undertake the work of a real estate agent; or
(e)receive or hold money or other valuable property for or on behalf of another person; or
(f)practise in partnership or in an incorporated law firm unless the barrister sole is the only voting shareholder of the incorporated law firm.
14.3 A barrister sole may practise from a set of rooms or chambers and join with other barristers sole in sharing secretarial and support services for their practices, including the employment of another lawyer who holds a practising certificate as a barrister sole.
The Occupation of a Barrister in NSW, Victoria and WA
The regulation of the legal profession in New South Wales is governed by uniform legislation and rules which includes the Legal Profession Uniform Law Application Act 2014 No 16 [NSW] (the Application Act), the Legal Profession Uniform Law (NSW) No 16a of 2014 [NSW] (the Uniform Law) and the Legal Profession Uniform Conduct (Barristers) Rules 2015 [NSW] (Bar Rules). Victoria and WA have adopted legislation and rules in the same form as New South Wales.
The objects of the Bar Rules include to “act independently”.[67] Rules 11 to 16 of the Bar Rules set out the work of a barrister. The work of a barrister set out in rule 11 includes appearing as an advocate, giving legal advice and such other work as is from time to time commonly carried out by barristers. Rule 13 of the Bar Rules sets out certain conduct that a barrister must not engage in. Rule 12 of the Bar Rules provides:
A barrister must be a sole practitioner, and must not:
(a)practise in partnership with any person,
(b)practise as the employer of any legal practitioner who acts as a legal practitioner in the course of that employment,
(c)practise as the employee of any person,
(d)be a director of an incorporated legal practice, or
(e)practice by or through an unincorporated legal practice.
[67] 3(b).
The Occupation of a Barrister in the ACT
Mr Marcus Hassell is a barrister in the ACT and President of the ACT Bar Council who swore an affidavit on behalf of the ACT Bar Council.[68] Mr Hassell deposed to the regulatory scheme for the regulation of lawyers in the ACT under the Legal Profession Act 2006 (ACT); the Legal Profession (Barristers) Rules 2021 (ACT); and the Legal Profession Regulation 2007 (ACT). In this section of our reasons, we have adopted much of the summary of the regulatory scheme provided by Mr Hassell, noting that his evidence was not challenged in cross examination.
[68] Exhibit 18.
Section 81 of the ACT Barristers Rules provides as follows:
A barrister must be a sole practitioner, and must not practice:
(a)in partnership with any person;
(b)as the employer of any legal practitioner who acts as a legal practitioner in the course of that employment; or
(c)as the employee of any person.
The combined effect of the ACT Barristers Rules and the ACT Legal Profession Act includes that:[69]
(a)a person who holds a practising certificate as a barrister of any kind must only engage in “barristers work”;
(b)any barrister at the “independent bar” in the ACT “must” be a sole practitioner and “must not” practise in partnership with or as the employee of any person, and must not be the “employer” of any other legal practitioner.
[69] Ibid, [6].
In the ACT, a legal practitioner cannot be issued with a barrister’s practising certificate which entitles them to practise as an “employed barrister”, except in limited circumstances for those persons who are government lawyers.[70]
[70] Ibid, [6(c)].
Contentions of the Applicant on the Issue of Equivalency of Occupations
The applicant contends that in New Zealand the occupational activities of the supervising barrister acting on their own account are the same activities carried out by the employed barrister, albeit carried out under supervision. It follows, on the applicant’s submission, that there is equivalency of the occupations of an employed barrister in New Zealand and a barrister in the Australian jurisdictions. The applicant contends that:
(a)his status as an employee and his obligation to be supervised; and
(b)the status of a barrister in the Australian jurisdictions to be a sole practitioner and not an employee
do not impact upon the required analysis of the occupational activities which are substantially the same in New Zealand as they are in the Australian jurisdictions.
Contentions of the Respondents on the Issue of Equivalency of Occupations
The respondents contend that the occupation of an “employed barrister” in New Zealand is not equivalent to that of a “barrister” in the Australian jurisdictions.
Consideration of the Issue of Equivalency of Occupations
The applicant was registered in New Zealand to practise as an employed barrister. As the holder of an employed barrister practising certificate, the applicant was required to be employed, and therefore supervised, when engaged in legal practice. The requirement that an employed lawyer (including an employed barrister) be supervised is contained in rule 11.1(b) of the NZ Conduct Rules, which provides that the conduct of all persons engaged or employed by a law practice is at all times to be competently supervised and managed by a lawyer (including a barrister) who is practising on their own account. The applicant was required to be supervised and employed by a barrister practising on his own account.
The applicant acknowledges that his practising certificate did not permit him to practise as a barrister on his own account, or in other words, as a sole practitioner. The applicant is prohibited from practising as a barrister in New Zealand as a sole practitioner.[71]
[71] Applicant’s Statement of Facts, Issues and Contentions dated 3 October 2023, [36] and [39].
The applicant provided no evidence to the Tribunal about any conduct as an employed barrister whilst he held an employed barrister practising certificate in the financial year ending 20 June 2023. Relevant to this matter is that he was registered in New Zealand to practise as an employed barrister under the supervision of another barrister practising on their own account. The question for the Tribunal is whether the applicant’s occupation for which he was registered in New Zealand is equivalent to the occupation for which he seeks registration in the Australian jurisdictions. This question must be answered by reference to s 28 of the TTMRA which provides:
(1) An occupation for which persons may be registered in New Zealand is taken to be equivalent to an occupation for which persons may be registered in an Australian jurisdiction if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).
(2) Conditions may be imposed on registration under this Part so as to achieve equivalence between occupations in different participating jurisdictions…
The focus is on the occupational activities that are authorised.[72] In Medical Board (Qld) v Renton,[73] Kiefel J reasoned that the activities “must be taken to be the activities usually associated with the profession which is the subject of the registration” and “[i]n some cases evidence may be necessary to identify those activities”. The Full Court in Cau said that:
… the phrase “authorised … under each registration” is to be construed in a context in which the definition of “registration” includes any form of authorisation of a person required by or under legislation. Further, “activities … to be carried out” is to be construed in a context in which the definition of “registration” includes forms of authorisation for carrying on an occupation. These are all textual indications that the phrase “activities authorised to be carried out” alludes to activities to be carried out under an authorisation for carrying on an occupation. That is, the word “activities” is linked to carrying on an occupation for which an authorisation is required.[74]
[72] Victorian Building Authority v Cau [2023] FCAFC 120 (‘Cau’), [47].
[73] [2006] FCA 947; (2006) 152 FCR 566, [32].
[74] [2023] FCAFC 120, [37] (emphasis in original).
In this case there is no real dispute about the occupational activities that are authorised by the legislation which are the activities commonly carried out by a barrister. We have no doubt that the occupational activities of what might be described as a fully qualified supervising barrister acting on their own account in New Zealand would be substantially the same as the occupational activities of a barrister in the Australian jurisdictions. However, that is not the relevant question because in this case the applicant was not registered as a fully qualified barrister but rather as an employed barrister requiring supervision. The respondents’ contentions focus on this difference.
When considering what are the occupational activities of an employed barrister in New Zealand it is relevant to consider the qualifications associated with the employed barrister. In this regard, the Full Court in Cau said:
[58] The concept that underpins Pt 3 of the Mutual Recognition Act, as was recognised in Lawrence, is that qualification for an occupation in one State is taken to be qualification for an equivalent occupation in another State. The word “occupation” is defined by reference to those occupations that may only be carried on by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification. Occupation is also defined by reference to “occupation, trade, profession or calling of any kind”. That definition is describing occupations involving the performance of work (carrying out activities) for which a registered person is qualified. A person registered for an occupation is taken to be qualified to perform all work (activities) of that occupation. The mutual recognition principle removes the need to meet the specific qualifications to be registered to carry out the activities of an occupation in each State in which registration is sought. The principle that like-for-like qualifications be mutually recognised entails that the activities of the occupation for which a person is qualified are also like-for-like (substantially the same).[75]
[75] [2023] FCAFC 120, [58].
It was not in dispute that, as an employed barrister, the applicant could not practise as a sole barrister on his own account. He was only entitled to hold a practising certificate as an employed barrister. Regulation 12 of the NZ Practice Rules Regulations sets out the criteria to practise on one’s own account. As an employed barrister for one year in New Zealand, the applicant had not attained these qualifications that would have allowed him to be elevated to the status of an unsupervised barrister entitled to practise on his own account. Ms Philpott in her affidavit deposes to those qualifications or requirements contained within regulation 12, namely:[76]
(a)at least three years’ full time relevant experience in New Zealand within the last five years;
(b)the completion of mandatory educational requirements which means the successful completion of the ‘Stepping Up Course’; and
(c)being able to satisfy the New Zealand Law Society that he was suitable to practise on his own account taking into account all relevant considerations including the nature and extent of his legal experience, how he intends to practise on his own account and the area of law he intends to practise in.
[76] Exhibit 19, [16].
It is apparent from regulation 12 that registration as an unsupervised barrister is dependent on attainment of the above qualifications. The lack of these qualifications informs the meaning to be given to the occupation for which the applicant is registered in New Zealand. This is because occupation is defined in the TTMRA to mean “an occupation …, where registration is wholly or partly dependent on the attainment or possession of some qualification … and includes a specialisation … in which registration may be granted.”[77] The applicant’s registration as an employed barrister reflects his lack of the qualifications set out above. His occupation as an employed barrister is a ‘specialisation’ for which his registration has been granted in New Zealand. In the Australian jurisdictions there is no equivalent ‘specialisation’ of an employed or supervised barrister.
[77] s 4.
The applicant has not achieved full qualification to perform all the activities of an unsupervised barrister. It follows that there is no equivalency of occupations because, by reference to his qualifications and status as an employee, the activities in the occupation of an employed barrister which are authorised to be carried out in New Zealand are limited and not the same as the activities of a sole practitioner barrister in the Australian jurisdictions. Adopting Lockhart J’s approach in Sande v Registrar, Supreme Court of Queensland of applying the TTMRA “in a practical, commonsense manner”,[78] we find that the applicant was not registered in New Zealand in connection with an occupation which is equivalent to the occupation of a barrister in the Australian jurisdictions. The registration of the applicant as a barrister in the Australian jurisdictions would be contrary to the Trans-Tasman mutual recognition principle because it would allow a person with requirements of supervision and far fewer qualifications to become registered as a fully independent barrister with no requirements of supervision.
[78] (1994) 134 ALR 560, 565.
There is also a fundamental difference between the carrying on of activities as an employee under supervision and as a fully independent sole practitioner. The nature of the activities carried out is different because an employee must carry out those activities in accordance with the terms of an employment contract and employment law including duties owed as an employee to an employer. The effect of being a supervised employed barrister is to constrain the activities able to be carried out which results in those activities being very different compared to the relatively unrestrained activities of a fully independent and unsupervised barrister.
Barristers in the Australian jurisdictions are independent, sole practitioners. The applicant was prohibited in New Zealand from carrying out his activities other than in the course of his employment and under the supervision of another practitioner. Barristers in the Australian jurisdictions are prohibited from carrying out work as an employee. It follows that the applicant was not authorised to carry out “substantially the same” activities in his occupation as an employed barrister to those of a barrister in the Australian jurisdictions.
The next question for consideration is whether conditions may be imposed in the Australian jurisdictions so as to achieve equivalence between the occupations in the different jurisdictions.
Can Equivalence be Achieved by Imposing Conditions?
The applicant contends that equivalency could be achieved by imposing a requirement of supervision on him as a barrister in the Australian jurisdictions.
The respondents contend that under their respective legislative schemes there is no scope for the imposition of conditions that the applicant conduct his practice as a supervisee or employee of another barrister.
It is our view that equivalence cannot be achieved by imposing conditions. It is a fundamental requirement of the legislative schemes regulating barristers that they are independent sole practitioners who do not act under supervision and are prohibited from being an employee.
With respect to NSW, VIC and WA, the only conditions that may be imposed under the Uniform Law on a practising certificate are those set out in Division 3 of Part 3.3 at ss 47 to 54. For example:
(a)an Australian practising certificate may authorise the holder to engage in legal practice in three categories, including “as an employee of a law practice” or “as or in the manner of a barrister only”, but does not permit a person to engage in legal practice both as an employee and in the manner of a barrister;
(b)section 49 of the Uniform Law imposes a statutory condition requiring the holder to engage in supervised legal practice for a specified period, but this does not apply to a barrister’s practising certificate;
(c)section 50 of the Uniform Law imposes a statutory condition on the barrister’s practising certificate to undertake and complete a reading program.
With respect to the ACT, Mr Hassall provides his opinion based on the ACT legislative scheme that it would be impossible for the ACT Bar Council to achieve equivalence to the occupation in which the applicant was engaged in New Zealand by imposing conditions.[79] We accept his evidence because:
(a)any condition of employment would breach the ‘sole practitioner’ requirement of s 81 of the ACT Barrister Rules for both the employer and the employee; and
(b)there is no legislative provision providing for a requirement to be supervised or managed by another barrister and it would be inconsistent with the obligation of independence.
[79] Exhibit 18, [15].
Decision of the Tribunal
The decision of the Tribunal is to affirm the decisions under review.

I certify that the preceding 137 (one hundred and thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones and Grant Pearson, Chairperson of the New Zealand Trans-Tasman Occupations Tribunal

...............................[sgd].........................................
Associate
Dated: 21 March 2024

Dates of hearing:

19 and 20 December 2023

Applicant

Self-represented

Counsel for the Respondent in 2023/3171 (New South Wales Bar Association)

Peter Maddigan

Counsel for the Respondent in 2023/3987 & 2023/8223 (Victorian Bar Inc)

Chris Fitzgerald

Counsel for the Respondent in 2023/3990 (Legal Practice Board Western Australia)

Rachael Young

Kate Pedersen

Counsel for the Respondent in 2023/4932 (Australian Capital Territory Bar Association)

Dr Kristine Hanscombe KC

Nicole Papaleo

ANNEXURE A.
Exhibit List

Party Tendering Description Exhibit

Council of the New South Wales Bar Association 2023/3171 T Documents 1

Council of the New South Wales Bar Association 2023/3171 Supplementary T Documents 2

Council of the New South Wales Bar Association 2023/3171 Joint T Document bundle 3

Victorian Bar Inc 2023/3987 T Documents 4

Victorian Bar Inc 2023/3987 Supplementary T Documents 5

Legal Practice Board Western Australia 2023/3990 Statement of reasons 6

Legal Practice Board Western Australia 2023/3990 T Documents 7

Australian Capital Territory Bar Association 2023/4932 T Documents 8

Victorian Bar Inc 2023/8223 Decision dated 1 November 2023 9

Victorian Bar Inc 2023/8223 Statement of Reasons 9A

Applicant Application under sections 22(2) and 25(3) of the TTMRA 10

Applicant Email response to affidavits filed by Australian Capital Territory Bar Association on 18 December 2023 11

Applicant Email response to affidavit filed by Legal Practice Board Western Australia on 15 December 2023 12

Council of the New South Wales Bar Association 2023/3171 s 42B dismissal application by email dated 1 November 2023 13

Applicant Additional bundle of documents (paged 1 to 346) 14

Applicant Email from New Zealand Law Society to the Applicant dated 11 August 2020 15

Legal Practice Board Western Australia 2023/3990 Bundle of material 16

Legal Practice Board Western Australia Affidavit of Jodie-Ann Rebecca Bowen sworn 15 December 2023 together with attachments JB1 to JB2 17

Australian Capital Territory Bar Association Affidavit of Marcus Hassall affirmed 15 December 2023 together with annexures A to D 18

Australian Capital Territory Bar Association Affidavit of Juliet Josephine Philpott affirmed 18 December 2023 together with Annexure A 19

Applicant 6 June 2023 application for review of WA decision together with document described as being the refusal document 20

Dates of hearing:	19 and 20 December 2023
Applicant	Self-represented
Counsel for the Respondent in 2023/3171 (New South Wales Bar Association)	Peter Maddigan
Counsel for the Respondent in 2023/3987 & 2023/8223 (Victorian Bar Inc)	Chris Fitzgerald
Counsel for the Respondent in 2023/3990 (Legal Practice Board Western Australia)	Rachael Young Kate Pedersen
Counsel for the Respondent in 2023/4932 (Australian Capital Territory Bar Association)	Dr Kristine Hanscombe KC Nicole Papaleo

Party Tendering	Description	Exhibit
Council of the New South Wales Bar Association	2023/3171 T Documents	1
Council of the New South Wales Bar Association	2023/3171 Supplementary T Documents	2
Council of the New South Wales Bar Association	2023/3171 Joint T Document bundle	3
Victorian Bar Inc	2023/3987 T Documents	4
Victorian Bar Inc	2023/3987 Supplementary T Documents	5
Legal Practice Board Western Australia	2023/3990 Statement of reasons	6
Legal Practice Board Western Australia	2023/3990 T Documents	7
Australian Capital Territory Bar Association	2023/4932 T Documents	8
Victorian Bar Inc	2023/8223 Decision dated 1 November 2023	9
Victorian Bar Inc	2023/8223 Statement of Reasons	9A
Applicant	Application under sections 22(2) and 25(3) of the TTMRA	10
Applicant	Email response to affidavits filed by Australian Capital Territory Bar Association on 18 December 2023	11
Applicant	Email response to affidavit filed by Legal Practice Board Western Australia on 15 December 2023	12
Council of the New South Wales Bar Association	2023/3171 s 42B dismissal application by email dated 1 November 2023	13
Applicant	Additional bundle of documents (paged 1 to 346)	14
Applicant	Email from New Zealand Law Society to the Applicant dated 11 August 2020	15
Legal Practice Board Western Australia	2023/3990 Bundle of material	16
Legal Practice Board Western Australia	Affidavit of Jodie-Ann Rebecca Bowen sworn 15 December 2023 together with attachments JB1 to JB2	17
Australian Capital Territory Bar Association	Affidavit of Marcus Hassall affirmed 15 December 2023 together with annexures A to D	18
Australian Capital Territory Bar Association	Affidavit of Juliet Josephine Philpott affirmed 18 December 2023 together with Annexure A	19
Applicant	6 June 2023 application for review of WA decision together with document described as being the refusal document	20