Meagher and Victorian Bar Incorporated
[2022] AATA 4415
•20 December 2022
Meagher and Victorian Bar Incorporated [2022] AATA 4415 (20 December 2022)
Division:GENERAL DIVISION
File Number: 2021/0392
Re:Jacob Meagher
APPLICANT
AndVictorian Bar Incorporated
RESPONDENT
Decision
Tribunal:Deputy President Britten-Jones
Date:20 December 2022
Place:Melbourne
The Tribunal affirms the decision of the respondent to grant the applicant a practising certificate on the condition that he complies with the statutory requirements applicable to a barrister under the Legal Profession Uniform Law (Victoria).
.....[sgd]...................................................................
Deputy President Britten-Jones
CATCHWORDS
Trans-Tasman Mutual Recognition Act 1997 (Cth) – applicant registered as a barrister in New Zealand - whether applicant is entitled to be registered as a barrister in Victoria by operation of the Trans-Tasman Mutual Recognition Act – consideration of the Trans-Tasman mutual recognition principle – Victorian Bar imposed insurance conditions on registration under s 19(5) of the Trans-Tasman Mutual Recognition Act – whether insurance conditions are more onerous than would be imposed in similar circumstances – general responsibilities of the local registration authority - whether Victorian Bar acted contrary to the Trans-Tasman Mutual Recognition Act – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Associations Incorporation Reform Act (Vic)
Legal Profession Uniform Law Application Act 2014 (Vic)
Mutual Recognition Act 1992 (Cth)
Trans-Tasman Mutual Recognition Act 1997 (Cth)CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Johanson and Civil Aviation Safety Authority [2012] AATA 239; 127 ALD 195
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Victorian Building Authority v Andriotis [2019] HCA 22; (2019) 268 CLR 168SECONDARY MATERIALS
Explanatory Memorandum for the Trans-Tasman Mutual Recognition Bill 1996 (Cth)
REASONS FOR DECISION
Deputy President Britten-Jones
20 December 2022
INTRODUCTION
This is an application made pursuant to the Trans-Tasman Mutual Recognition Act 1997 (Cth) (TTMRA) for review of a decision by the respondent (the Victorian Bar) to grant the applicant a practising certificate on the condition that he complies with certain statutory requirements applicable to a barrister under the Legal Profession Uniform Law (Victoria) (the Uniform Law (Victoria)).
The applicant wishes to practise as a barrister in Victoria. Although currently domiciled in the United Kingdom, he is registered as a barrister in New Zealand. Barristers in Victoria are required to have a practising certificate issued by the Victorian Bar. There is a regime under the TTMRA for New Zealand barristers to be registered as barristers in Victoria. The applicant claims to be entitled under the TTMRA to be registered as a barrister in Victoria and to receive a practising certificate. He also applied, unsuccessfully, to become a member of the Victorian Bar. On 25 January 2021, he applied to the Tribunal for review.
On 28 September 2021, I gave a decision on jurisdiction (the jurisdiction decision) in this matter.[1] I decided that the Tribunal had jurisdiction to review the decision made by the Victorian Bar with respect to the grant of a barristers’ practising certificate to the applicant but not with respect to the decision to refuse the applicant membership to the Victorian Bar.
[1] TDDH v Victorian Bar Inc [2021] AATA 3445.
On 28 October 2021, the Victorian Bar filed a statement of reasons[2] pursuant to s 37(1) of the Administrative Appeals Tribunal Act 1975 (Cth) setting out the findings on material questions of fact and giving reasons for its decisions.
[2] Exhibit 1 at T2.
Background
On 10 July 2020, the applicant applied “to be called to the Victorian Bar” by virtue of the TTMRA. He explained that he was called as a barrister and solicitor of the High Court of New Zealand in 2016 and then moved to the independent bar in 2020 and is now registered and practising as a barrister of the High Court of New Zealand and is a full member of the New Zealand Bar Association. Further, in April 2020, he was admitted as an Australian Legal Practitioner and barrister and solicitor of the Supreme Court of Victoria and obtained a legal principal practising certificate.
On 21 September 2020, the Victorian Bar wrote to the applicant advising that the Victorian Bar Council had resolved to:
(a)allow his application for a Victorian barristers’ practising certificate for the 2020-21 financial year subject to various statutory requirements which included obtaining compulsory professional indemnity insurance; and
(b)refuse to grant him membership of the Victorian Bar by reference to certain clauses of the Victorian Bar constitution.
In response to some further queries, the Victorian Bar advised the applicant that the Bar Council resolved that he is entitled to practise as a barrister in Victoria and that upon the issue of a practising certificate by the Victorian Bar, he will be registered as a barrister on the roll of practitioners maintained by the Victorian Legal Services Board (VLSB).
The applicant responded on 29 September 2020 by asking the Victorian Bar to register his membership as barrister and member of the Victorian Bar saying:
If not this is a breach of the TTMRA. While membership of the Victorian Bar is not technically required to practice as a barrister it is a clear breach of the mutual recognition principle insofar as you have closed part of the profession to me and restricted my ability to ply my trade and earn an income. The Act does not allow you to do this nor carve out professional associations or guilds as a way of excluding mutual recognition.
On 9 October 2020, the Victorian Bar wrote to the applicant and advised that:
It is compulsory for a barrister to hold professional indemnity insurance with the LPLC and your barrister PC will not issue without it.
On 13 October 2020, the applicant wrote to the Legal Practitioner’s Liability Committee (LPLC) with respect to professional indemnity insurance.
On 28 October 2020, the LPLC advised the applicant:
This is now with the Regulators as I am not sure we can provide you with cover as you are not going to live or practise in Victoria. The Regulator can provide you with an exemption from obtaining PI insurance with the LPLC. They will of course need to see that you have adequate cover with another insurer and I'm guessing that is the one you have your other PI insurance with. I am assuming Vic Bar will be in touch with you regarding this.
On 29 October 2020, the applicant provided the Victorian Bar with the cover note to his United Kingdom (UK) Bar Mutual insurance policy describing it as “international cover for my bar practice from the English Bar Mutual Fund”.[3]
[3] Exhibit 1 at p 108 and 117 of T27.
On 19 November 2020, the applicant wrote to the Victorian Bar and requested an exemption from the requirement to hold insurance with the LPLC for the purposes of his barristers' practising certificate. He stated that his current UK Bar Mutual insurance policy is adequate. He said that he had complied with all the requirements of the 21 September 2020 letter and that there was nothing outstanding.
On 22 December 2020, the Victorian Bar advised the applicant that the Bar Council would consider his application for an exemption for insurance at its next meeting on 28 January 2021.
On 28 January 2021, the Bar Council considered the applicant’s professional indemnity insurance exemption request and resolved that the correct authority to assess discretionary exemption is the VLSB.[4]
[4] Exhibit 1 at p 149 of T31.
On 3 February 2021, the Victorian Bar wrote to the applicant advising that on 28 January 2021 the Bar Council considered the insurance exemption request and determined that he did not meet any of the automatic exemptions to the requirements of s 211 of the Uniform Law (Victoria) as provided for in s 215 of the Uniform Law (Victoria) and regulation 82 of the Legal Profession General Rules. Further, the Victorian Bar advised that it was not authorised to grant any of the discretionary exemptions and that the applicant could make an application to the VLSB for an exemption under s 215(6) of the Uniform Law (Victoria).[5]
[5] Exhibit 1 at T33.
On 23 June 2021, the Victorian Bar wrote to the applicant reiterating that the VLSB is the authority that is able to consider professional indemnity insurance exemption requests and confirmed that this is not a function delegated to the Victorian Bar.[6]
[6] Exhibit 3, witness statement of Kai Li Zhu at [8].
On 28 February 2022, the Victorian Bar received a letter from the VLSB stating that following its assessment of the applicant’s UK Bar Mutual policy, it was inclined to grant the applicant an exemption from the barrister insurance requirement subject to the applicant satisfying certain conditions.[7]
[7] Ibid at [47].
On 1 March 2022 the Victorian Bar wrote to the applicant and said:
… we encourage you to engage with and respond to the content of yesterday’s email detailing the further information VLSB requires in order to grant you an insurance exemption. As previously stated, as soon as this exemption is granted the Bar will be in a position to issue you with a barrister practising certificate.
On 6 March 2022, the applicant advised the Victorian Bar that the insurance required by VLSB “does not exist and is far more onerous than anyone else is required to hold”.
On 15 March 2022, the Victorian Bar responded to the applicant advising that the insurance conditions imposed by the VLSB are not any more onerous than is required of all persons who wish to practise as a barrister in Victoria. Reference was made to reg 79 of the Legal Profession Uniform General Rules 2015.
LEGISLATIVE FRAMEWORK
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.[8]
[8] Trans-Tasman Mutual Recognition Act 1997, s 3.
The Explanatory Memorandum for the Trans-Tasman Mutual Recognition Bill 1996 (Cth) provided that:[9]
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.
[9] 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 Victorian Bar is the local registration authority 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.
Division 2 of Part 3 of the TTMRA deals with entitlement to registration.
Section 18(1) 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 33 of the TTMRA provides that a decision under the Act may be reviewed by the Administrative Appeals Tribunal.
Section 39 imposes certain duties on local registration authorities:
General responsibilities of local registration authorities
(1) It is the duty of each local registration authority of an Australian jurisdiction to facilitate the operation of this Part in relation to the occupations for which the authority is responsible, and in particular to make use of the power to impose conditions in such a way as to promote the Trans‑Tasman mutual recognition principle.
The Regulation of the Legal Profession in Victoria
The Legal Profession Uniform LawApplication Act2014 (Vic) (the Application Act) provides that the Uniform Law (Victoria) as set out in Schedule 1 is the law of Victoria. Part 3 of the Application Act establishes local regulatory authorities including the VLSB.
Section 3 of the Application Act provides the following definitions:
"Legal Profession Uniform Law (Victoria)" means the provisions applying in this jurisdiction because of section 4
"Liability Committee" means the Legal Practitioners' Liability Committee continued under section 100
"local professional association" means the following professional associations—
(a) the Law Institute; and
(b) the Victorian Bar
"Victorian Bar" means Victorian Bar Inc, an association incorporated under the Associations Incorporation Reform Act 2012
"Victorian Legal Services Board" means the body continued under section 28
Section 10 of the Application Act designates a local regulatory authority for the purposes of provisions of the Uniform Law (Victoria). It provides that the designated local regulatory authority for the purposes of:
(a)chapter 4 of the Uniform Law (Victoria) is the VLSB; and
(b)section 50(1) of the Uniform Law (Victoria) is the Victorian Bar.
Sections 30 and 31 of the Application Act provide for the objectives and the functions and powers of the VLSB as follows:
30 Objectives
The objectives of the Victorian Legal ServicesBoard are—
(a) to ensure the effective regulation of the legal profession and the maintenance of professional standards; and
(b) to address the concerns of clients of law practices and legal practitioners through the regulatory system and provide for the protection of consumers of legal services; and
(c) to ensure the adequate management of trust accounts; and
(d) to contribute to the effective administration of the Legal Profession Uniform Framework through cooperation with other involved entities.
31 Functions and powers
(1) The Victorian Legal Services Board has the functions conferred on it by or under the Legal Profession Uniform Law (Victoria), this Act or any other Act.
(2) The Victorian Legal Services Board has all the powers necessary to perform its functions and achieve its objectives, including the powers conferred on it by or under the Legal Profession Uniform Law (Victoria), this Act or any other Act.
Under s 44(1) of the Application Act, the VLSB may delegate any function to a local professional association which includes the Victorian Bar. By instrument of delegation[10] dated 29 May 2018, the VLSB delegated to the Victorian Bar certain functions, duties and powers relating to persons practising solely as barristers. This instrument delegated to the Victorian Bar the power to grant an Australian practising certificate under ss 44 and 45 of Part 3.3 of the Uniform Law (Victoria).
[10] Exhibit 6.
Part 7 of the Application Act deals with professional indemnity insurance and provides under s 102(1) that the LPLC has the following functions:
(a) to carry on the business of providing professional indemnity insurance in accordance with Part 4.4 of the Legal Profession Uniform Law (Victoria);
(b) to undertake liability under contracts of professional indemnity insurance provided in accordance with Part 4.4 of the Legal Profession Uniform Law (Victoria);
(c) any other functions conferred by the Legal Profession Uniform Law (Victoria) or this Act.
Under s 150 of the Application Act, the VLSB must keep a register of Australian legal practitioners whose home jurisdiction is Victoria. The register must specify whether each practitioner is or is not a barrister.
The Uniform Law (Victoria)
The Uniform Law (Victoria) is contained in Schedule 1 to the Application Act. Its objectives are to promote the administration of justice and an efficient and effective Australian legal profession.
Chapter 3 of the Uniform Law (Victoria) deals with legal practice. Part 3.3 deals with Australian legal practitioners and includes s 42 which provides that an objective of Part 3.3 is to provide a system for the grant and renewal of Australian practising certificates in the Victorian jurisdiction to eligible and suitable persons who are already admitted to the Australian legal profession in any jurisdiction. There is a note to s 42 which provides that:
The grant of practising certificates to New Zealand lawyers and their entitlement to practise in this jurisdiction are effected by the operation of the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth.
Section 44 of the Uniform Law (Victoria) gives power to the designated local authority to grant or renew an Australian practising certificate. Section 45 sets out prerequisites for the grant or renewal of Australian practising certificates as follows:
Prerequisites for grant or renewal of Australian practising certificates in this jurisdiction
(1) The designated local regulatory authority may grant or renew an Australian practising certificate only if it is satisfied that the applicant—
(a) is an Australian lawyer; and
(b) if required by this Law to have professional indemnity insurance—has, or will have on or before the grant or renewal, professional indemnity insurance in accordance with this Law and the Uniform Rules; and
(c) has indicated in the application that he or she does not hold (and he or she does not have a current application for) another Australian practising certificate that would be in force concurrently with the certificate whose grant or renewal is sought under this section.
(2) Subject to subsection (4), the designated local regulatory authority must not grant or renew an Australian practising certificate if it considers that the applicant is not a fit and proper person to hold the certificate.
As set out above, the powers in ss 44 and 45 of the Uniform Law (Victoria) have been delegated to the Victorian Bar.
Section 6 of the Uniform Law (Victoria) defines a barrister as an “Australian legal practitioner whose Australian practising certificate is subject to a condition that the holder is authorised to engage in legal practice as or in the manner of a barrister only”. An Australian practising certificate includes a practising certificate granted to an Australian lawyer under Part 3.3 (which includes ss 44 and 45) of the Uniform Law (Victoria).
Chapter 4 of the Uniform Law (Victoria) deals with business practice and professional conduct. Part 4.4 deals with professional indemnity insurance and includes that the objective of this Part is to ensure that each Australian legal practitioner who engages in legal practice in the Victorian jurisdiction has or is covered by approved professional indemnity insurance.
Section 210 of Part 4.4 of the Uniform Law (Victoria) provides for an approved insurance policy:
(1) For the purposes of this Part, a policy of professional indemnity insurance is an approved insurance policy for a participating jurisdiction if—
(a) …
(b) it—
(i) complies with the minimum standards specified in the Uniform Rules for the purposes of this section; or
(ii) is approved by the Council.
(2) For the purposes of this Part, a policy of professional indemnity insurance is an approved insurance policy for a jurisdiction that is not a participating jurisdiction if it is approved by the Council.
(3) If it considers it is appropriate to do so in relation to this jurisdiction, the Council may give an approval for the purposes of this section unconditionally or subject to conditions specified in the approval, and may vary or revoke an approval.
(4) For the purposes of this Law, an Australian legal practitioner or law practice has professional indemnity insurance for this jurisdiction if the practitioner or law practice holds or is covered by an approved insurance policy for this jurisdiction.
Section 211 of Part 4.4 of the Uniform Law (Victoria) provides:
An Australian legal practitioner must not engage in legal practice in this jurisdiction unless the practitioner holds or is covered by an approved insurance policy for this jurisdiction and the policy covers that legal practice.
Civil penalty: 100 penalty units.
Note
(1) Section 45 provides that the designated local regulatory authority must not grant or renew an Australian practising certificate unless it is satisfied that the applicant has, or will have on or before the grant or renewal, professional indemnity insurance in accordance with this Law and the Uniform Rules. This does not apply if the applicant is not required to have professional indemnity insurance.
Section 215 of the Uniform Law (Victoria) provides that:
(a)an Australian legal practitioner is exempt from the requirement to hold or be covered by an approved insurance policy in certain specified circumstances; and
(b)the designated local regulatory authority may exempt an Australian legal practitioner from the requirement to obtain an approved insurance policy in certain specified circumstances.
Section 215(6) of the Uniform Law (Victoria) provides that the designated local regulatory authority may exempt a specified Australian legal practitioner from the requirement to hold or be covered by an approved insurance policy on any grounds considered sufficient. Section 10 of the Application Act provides that the designated local regulatory authority for the purposes of Chapter 4 (which includes s 215) of the Uniform Law (Victoria) is the VLSB. The instrument of delegation does not delegate to the Victorian Bar any of the functions, duties or powers in s 215 of the Uniform Law (Victoria).
Section 419 of the Uniform Law (Victoria) provides for the making of Legal Profession Uniform Rules.
The Uniform Rules
The Legal Profession Uniform General Rules 2015 (the Uniform Rules) made under the Uniform Law (Victoria) provide at rule 79 minimum standards for professional indemnity insurance for barristers:
Rule 79 Minimum standards for professional indemnity insurance—barristers
(1) This rule sets out, for the purposes of section 210(1)(b)(i) of the Uniform Law, the minimum standards for professional indemnity insurance in relation to a barrister.
(2) Professional indemnity insurance must indemnify the barrister against civil liability incurred while engaging in legal practice as a barrister within Australia.
(3) Professional indemnity insurance must provide indemnity for claims actually made and notified during the period of insurance.
(4) Professional indemnity insurance must provide minimum coverage of $1.5 million for each and every claim, or each and every loss, inclusive of the claimant’s costs and defence costs, up to a minimum aggregate limit of $4.5 million.
(5) Professional indemnity insurance must provide indemnity for a minimum of 7 years for run-off liabilities in the event that the insured dies or ceases to engage in legal practice as a barrister for any reason, other than having the insured’s Australian practising certificate cancelled as a result of disciplinary action.
(6) In the case of a claim arising from dishonesty or fraud, professional indemnity insurance must not exclude indemnity of a barrister who was not knowingly involved in or party to the dishonesty or fraud.
(7) Professional indemnity insurance need not but may provide indemnity to the extent that the subject matter of the claim entitles a claimant to claim and receive compensation from a fidelity fund, guarantee fund or similar cover provided under jurisdictional legislation.
(8) Professional indemnity insurance must provide retroactive cover, except for claims arising out of fraud or dishonesty. However, it is permissible for the insurance to impose a retroactive limitation on cover—
(a) if the retroactive date is the date the barrister commenced to engage in legal practice as a barrister, or
(b) if—
(i) the barrister has previously ceased to engage in legal practice as a barrister and is covered for run-off liabilities arising from that prior practice under another insurance policy, and
(ii) the retroactive date is the date the barrister resumed legal practice as a barrister.
The Victorian Bar Incorporated
The Victorian Bar is an association incorporated under the Associations Incorporation Reform Act (Vic) (the Associations Act).
The purposes of the Victorian Bar are set out in its constitution:
2. PURPOSES
The purposes of the Victorian Bar are:
(a) to manage, administer and develop the Victorian Bar as an independent professional association for barristers in Victoria, including by:
(i) setting the requirements for entry onto the Bar Roll and membership of the association;
(ii) making chambers available, as far as practicable;
(iii) providing support services; and
(iv) arranging continuing legal education and professional development;
(b) to regulate aspects of barristers’ practice (including regulation subject to delegation from the Victorian Legal Services Board) and the professional and related conduct of members;
By operation of s 10 of the Application Act, the Victorian Bar is a designated local authority for the purposes of s 50(1) of the Uniform Law (Victoria). Further, the Victorian Bar holds a delegation from the VLSB to grant or renew a practising certificate for those wishing to practise solely as a barrister.
ROLE OF THE TRIBUNAL
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 the Victorian Bar to come to a fresh decision.[11]
[11] Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31.
In Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, at 419, Bowen CJ and Deane J stated:
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 determination of the tribunal is whether the decision was the correct or preferable one on the material before the tribunal.
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 Victorian Bar. Further, the Tribunal does not focus on whether the Victorian Bar’s previous decisions were correct. Rather, it will determine the correct or preferable decision based on the evidence and submissions of the parties at these proceedings.[12]
[12] Re Johanson and Civil Aviation Safety Authority [2012] AATA 239; 127 ALD 195 at [28].
The decision of Shi v Migration Agents Registration Authority (2008) 235 CLR 286 provides some important observations made by Kiefel J, (as the Chief Justice then was), about the need to identify with precision by reference to the statute concerned the particular decision which falls for review by the Tribunal in a given case. The observations were made in a dissenting judgment but the dissent was on a subsidiary issue and, in my view, in no way detracts from the correctness of the point made by Kiefel J at [132] – [134]:
[132] The nature of the review conducted by the Tribunal depends upon the terms of the statute conferring the right, rather than upon the identification of it as an administrative authority entrusted with a particular type of function. The jurisdiction of the Tribunal, a statutory tribunal, depends upon there having been a decision made which it is authorised to review. Section 25 of the AAT Act, together with s 306 of the Migration Act, provides that authority with respect to a decision under s 303(1) of the Migration Act. Section 25(4) of the AAT Act limits the Tribunal’s powers to a review of that decision.
[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. As Sheppard J said in Secretary to the Department of Social Security v Riley, 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.
[134] Section 43(1) expresses clearly that the Tribunal may exercise all of the powers and discretions conferred upon the original decision-maker. The Tribunal has been said to stand in the shoes of the original decision-maker, for the purpose of its review. In Minister for Immigration and Ethnic Affairs v Pochi Smithers J said that, in reaching a decision on review of a decision of the original decision-maker, the Tribunal should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person. In Liedig v Federal Commissioner of Taxation, Hill J adopted, as applicable to the Tribunal, what Kitto J said of the Taxation Board of Review in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation, namely that its function is “merely to do over again … what the Commissioner did in making the assessment”, within the limits of the taxpayer’s objection.
[footnote references omitted]
THE DECISION UNDER REVIEW
In the jurisdiction decision[13] I considered that there were two possible decisions made by the Victorian Bar which affected the applicant. The first decision was made by resolution of the Bar Council on 17 September 2020 conveyed to the applicant by letter dated 21 September 2020 that allowed the application for a barristers’ practising certificate for the 2020/2021 financial year subject to various statutory requirements which included obtaining compulsory professional indemnity insurance. The second decision made on 28 January 2021 I described as an effective refusal[14] of the applicant’s application for a barristers’ practising certificate because the applicant had not obtained insurance from the LPLC and did not have an exemption from the insurance requirement under s 215 of the Uniform Law (Victoria). However, it is apparent from the more recent correspondence between the parties that the position of the Victorian Bar is that if the VLSB granted an insurance exemption then it would issue a barrister’s practising certificate to the applicant.
[13] TDHH v Victorian Bar Incorporated [2021] AATA 3445.
[14] See the Jurisdiction Decision [2021] AATA 3445 at [93] to [96].
The effect of the decision on 17 September 2020 and the position adopted by the Victorian Bar since then is that the Victorian Bar has decided to grant the applicant a practising certificate on the condition that he complies with the statutory requirements applicable to a barrister under the Uniform Law (Victoria). Those requirements included obtaining an approved insurance policy or an exemption under s 215 of the Uniform Law (Victoria). This amounts to a conditional grant of registration under s 19(5) of the TTMRA. It does not amount to a refusal of registration which is only permitted in the limited circumstances set out in s 22 of the TTMRA.
Applicant’s contentions
The applicant contends that the Tribunal should grant his application under the TTMRA to be registered as a barrister in Victoria 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 (namely the Victorian Bar) 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. The applicant contends that the TTMRA does not permit registration on a conditional basis - one is either registered or not.
The applicant relies upon s 19(5) of the TTRMA and Victorian Building Authority v Andriotis [2019] HCA 22; (2019) 268 CLR 168[15] (Andriotis) to contend that if the Victorian Bar wished to impose a condition it could only do so post registration, and even then, one not more onerous than already existed and subject to the overriding objective of the TTMRA. The applicant argues that registration is not subject to any discretion and it exists as a right. The applicant relies upon the Trans-Tasman mutual recognition principle in s 16(1) of the TTMRA which entitles a person registered in New Zealand for an occupation to be registered in Victoria for the equivalent occupation.
[15] At [163] and [174]
Further, the applicant says that he has adequate insurance and that he is being prevented from being registered “by a seemingly bizarre self-imposed technical requirement … that in order to obtain insurance one must reside in Victoria, and without insurance one may not receive TTMRA registration”.
Finally, the applicant makes a submission that by imposing an insurance obligation on the applicant and by failing to register the applicant as a barrister, the Victorian Bar has acted contrary to the TTMRA.
Victorian Bar’s contentions
The Victorian Bar contends that the imposition of an insurance condition is permissible under s 19(5) of the TTMRA. It says that the professional indemnity insurance condition is no more onerous than the insurance obligations imposed as a condition of registration on all barristers who wish to practise in Victoria. Further, the applicant has not been granted an exemption by the VLSB under s 215 of the Uniform Law (Victoria) from the mandatory requirement that he hold or be covered by an approved insurance policy.
Given that the applicant intends to practise on Victorian matters, the Victorian Bar contends that the decision to grant a practising certificate subject to the requirement of obtaining an approved insurance policy or an exemption under s 215(6) of the Uniform Law (Victoria) was the correct or preferable decision and should be affirmed on review. The Victorian Bar contends that the only outstanding issue is insurance and that in that regard the applicant needs to liaise with the LPLC to obtain the required insurance. Alternatively, the applicant would need to be granted an exemption from the VLSB.
CONSIDERATION and FINDINGS
On 10 July 2020, the applicant wrote to the Victorian Bar and applied “to be called to the Victorian Bar by virtue of the Trans-Tasman Mutual Recognition Act 1997”. On 21 August 2020, the applicant provided a statutory declaration[16] by which he gave the notice required by s 18 of the TTMRA. The Victorian Bar responded within the one-month period referred to in s 20(1). I reject the applicant’s contention that he became entitled to registration under s 20(4) of the TTMRA at the end of the period of one month after the s 18 notice was lodged.
[16] Exhibit 1, p 63 of T20.
The effect of the 17 September 2020 resolution was to decide to grant the applicant a practising certificate on the condition that he complies with the statutory requirements applicable to a barrister under the Uniform Law (Victoria). The effect of the decision is that the grant of the registration was subject to the condition of the applicant obtaining an approved insurance policy or an exemption under s 215(6) of the Uniform Law (Victoria).
The applicant contends that the imposition of a condition was not permitted by the TTMRA. I reject that contention for the reasons below.
Section 19(5) reposes power in a local registration authority to impose conditions on registration. In Andriotis at 179 [29], the High Court considered the powers under s 20(5) of the Mutual Recognition Act 1992 (Cth) (MRA) in regards to this very situation when a local registration authority imposes insurance conditions. The High Court confirmed that s 20(5) of the MRA, which is in the same terms as s 19(5) of the TTMRA, permits the imposition of insurance conditions. At [29], the High Court referred to:
… the power given by the MRA to the local registration authority of the second State to condition registration under s 20(5). It may do so as long as the conditions are not more onerous than would be imposed in similar circumstances. The use of that power to condition would be consistent with the scheme of the MRA; satisfaction of a requirement of a State Act as a precondition to a grant would not.
The High Court in Andriotis was considering s 169(2)(e) of the Building Act 1993 (Vic) which required an applicant to be covered by insurance before they could be registered as a building practitioner. This is similar to the requirements for insurance in s 45 of the Uniform Law (Victoria). Therefore, the comments of the High Court in Andriotis can be applied to the TTMRA to support the contention that the Victorian Bar has the power to impose an insurance condition on the applicant’s practising certificate pursuant to the TTMRA.
The applicant contends that by failing to issue a barrister’s practising certificate to the applicant, the Victorian Bar has acted contrary to the TTMRA and in particular the Trans-Tasman mutual recognition principle in s 16(1). The High Court in Andriotis considered the mutual recognition principle in s 17 of the Mutual Recognition Act 1992 (Cth). The Trans-Tasman mutual recognition legislation operating between New Zealand and Australia adopts the same wording as the mutual recognition legislation operating between the states of Australia. I respectfully adopt the reasons of the High Court in Andriotis and apply those reasons to the applicant’s application under the TTMRA as follows:
(a)The Trans-Tasman mutual recognition principle is to the effect that after the person notifies the local registration authority of Victoria of his or her registration in New Zealand, the person is (a) entitled to be registered in Victoria for the equivalent occupation; and (b) pending that registration, entitled to carry on the equivalent occupation in Victoria.[17]
(b)The expression in s 16 of the TTMRA of the Trans-Tasman mutual recognition principle as applying to occupations must be read as having an immediate legal operation. The extent of that immediate legal operation, however, can be discerned only by interpreting each of those expressions of the mutual recognition principle to confer an entitlement the content of which accords with the detail of the provisions of the Part of the TTMRA in which the particular expression of the mutual recognition principle is located. The entitlement of a person who is registered for an occupation in New Zealand to obtain registration for an equivalent occupation in Victoria – which s 16(1)(a) operates to confer – 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 Division 2 of Part 3 of the TTMRA.[18]
(c)Registration for an equivalent occupation in Victoria comes about under s 19(2) of the TTMRA through the outworking of the fiction in s 19(1) that the law of Victoria that deals with registration expressly provides that registration in New Zealand is a sufficient ground of entitlement to registration.[19] The law of Victoria in the Uniform Law (Victoria) is, by s 19(1), to be understood to so provide.[20]
(d)The Victorian Bar, as the local registration authority, has the power to condition registration under s 19(5) of the TTMRA. It may do so as long as the conditions are no more onerous than would be imposed in similar circumstances. The use of that power to condition would be consistent with the scheme of the TTMRA; satisfaction of a requirement of a State Act as a precondition to a grant would not.[21]
[17] Victorian Building Authority v Andriotis [2019] HCA 22 (Andriotis) at [4].
[18] Andriotis at [71] and [72].
[19] Andriotis at [74].
[20] Andriotis at [25].
[21] Andriotis at [29].
The Trans-Tasman mutual recognition principle is expressed to be subject to Part 3 of the TTMRA which gives power to the Victorian Bar to impose conditions on registration under s 19(5). The use of that power to condition the registration of a barrister under the TTMRA is consistent with the scheme of the TTMRA. By imposing the insurance condition, the Victorian Bar has acted in accordance with the Trans-Tasman mutual recognition principle and the TTMRA more generally.
Further, the Victorian Bar has complied with its general responsibility under s 39 of the TTMRA to facilitate the operation of Part 3 of the TTMRA in relation to the legal profession, a key element of which is the need for practitioners to have appropriate insurance. The use of the power to impose conditions relating to insurance is consistent with the obligation to promote the Trans-Tasman mutual recognition principle.
The applicant contends that the Victorian Bar has imposed conditions on him that are more onerous than would be imposed as a condition of registration on a barrister in Victoria under s 45 of the Uniform Law (Victoria). I reject that contention for the reasons below.
Section 19(5) of the TTMRA provides the power to impose conditions on registration so long as they are not “more onerous than would be imposed in similar circumstances…if it were registration effected apart from this Part”. This section invites a comparison between conditions imposed under s 19(5) and conditions imposed in similar circumstances where registration is effected other than by Part 3 of the TTMRA. It follows that the insurance obligation imposed by s 19(5) as a condition of registration must not be more onerous than the insurance obligation imposed as a condition of registration on a barrister in Victoria under the Uniform Law (Victoria).
The comparison reveals that the condition imposed under s 19(5) of the TTMRA is the same statutory condition imposed by the Uniform Law (Victoria) on barristers seeking to practise in Victoria. This is not surprising given that the Victorian Bar must act in accordance with s 45 of the Uniform Law (Victoria) when deciding whether to grant a practising certificate to anyone wishing to practise as a barrister in Victoria. Section 45(1)(b) operates to oblige the applicant to have professional indemnity insurance “if required by this Law”. The requirement is found in s 211 of the Uniform Law (Victoria) which provides that a legal practitioner must not engage in legal practice in this jurisdiction unless the practitioner holds or is covered by an approved insurance policy for this jurisdiction and the policy covers that legal practice. The imposition of the condition that the applicant obtain an approved insurance policy or an exemption is no more onerous than (and indeed is the same as) the condition imposed on any barrister wishing to practise in Victoria.
However, the applicant argues that the imposition of the insurance requirement on him as a person not resident in Victoria is more onerous because he cannot obtain the approved insurance from the LPLC. On 13 October 2020, the applicant wrote to the LPLC offering to pay the insurance premium but was told that insurance cover could not be provided because he was not going to live in Victoria.[22] Further, he was told that he could apply for an exemption of the insurance requirement. The exemption referred to by the LPLC is a reference to the exemption provided for by s 215 of the Uniform Law (Victoria). This exemption from the requirement to obtain an approved insurance policy cannot be provided by the Victorian Bar because it does not have delegated authority to do so. The designated local authority for the purposes of s 215 is the VLSB. On 30 January 2021, the Victorian Bar wrote to the applicant in this regard and said:[23]
As has been previously explained, having barristers’ professional indemnity insurance that covers your practice in Victoria or an exemption from the requirement is a precondition for you to engage in legal practice in this jurisdiction. Pursuant to section 45 of the Legal Profession Uniform Law, the Bar cannot grant an Australian practising certificate unless it is satisfied that you have met this requirement or will meet it before grant of your barrister practising certificate. In your email below, you state that you already have the required insurance that would cover your practice as a barrister in this jurisdiction and the VLSB is satisfied with your insurance. Accordingly, can you please kindly provide the Bar with written confirmation from the VLSB regarding the exemption that has been granted to you. Once the Bar has this written confirmation, it will be in a position to issue you with a barrister practising certificate.
Please let me know if you would like any assistance in relation to contacting the VLSB in relation to their written confirmation and/or the LPLC in relation to your professional indemnity insurance position generally.
[22] Exhibit 1, p 112-113 and p 108 of T27.
[23] Exhibit 3, Affidavit of Kai Li Zhu at [36].
The position adopted by the Victorian Bar is no more than that which is required by the statutory scheme. The applicant must either obtain the necessary insurance from the LPLC or obtain an insurance exemption from the VLSB. The Victorian Bar is not the body that provides the insurance or the exemption from obtaining insurance. Unless and until the applicant obtains insurance or an exemption, the Victorian Bar cannot issue a practising certificate. The fact that the applicant because of his individual circumstances is not able to obtain insurance through LPLC and must seek an exemption from the VLSB does not make the imposition of the insurance requirement more onerous than for all barristers. The statutory requirement of insurance or an exemption is applied by the Victorian Bar to all applicants for a practising certificate irrespective of whether they are applying under the TTMRA or the Uniform Law (Victoria). The Victorian Bar cannot be said to be acting contrary to the TTMRA by imposing a condition which it is required to do by statute. Further, the Victorian Bar is not responsible for the decision of the LPLC to not provide insurance to the applicant. Nor is it responsible for the decision of the VLSB to not grant an exemption under s 215 of the Uniform Law (Victoria).
In any event, the VLSB when considering whether to grant an exemption has imposed the same requirements of insurance under rule 79 of the Uniform Rules (Victoria) that apply to any applicant for a practising certificate under ss 44 and 45 of the Uniform Law (Victoria). On 28 February 2022 the VLSB advised that following its assessment of the applicant’s UK Bar Mutual policy, it was inclined to grant an exemption subject to satisfaction of certain conditions. The Victorian Bar then wrote to the applicant as follows:[24]
By way of update, the Victorian Legal Services Board (the Board) has reviewed your Bar Mutual Insurance Cover Note dated 10 February 2022 together with the terms contained on the Bar Mutual website.
The Board has informed the Bar today that they are of the mind to grant you with an exemption from the requirement to obtain an approved barrister insurance policy in this jurisdiction pursuant to section 215(6) of the Legal Profession Uniform Law, provided that you:
1. secure an extra year of run off coverage to meet the minimum requirements of Rule 79(5) of the Legal Profession Uniform General Rules 2015 (the General Rules);
2. provide confirmation about whether the policy provides retroactive coverage (as this is unclear), in accordance with Rule 79 (8) of the General Rules; and
3. provide a copy of the renewed policy and schedule by 23 March 2022, or as soon as practicable before the expiration of the current policy, which expires 31 March 2022.
[24] Exhibit 3, Affidavit of Kai Li Zhu at [47].
On 1 March 2022 the Victorian Bar wrote to the applicant and said:[25]
Once you have satisfied the VLSB’s requirements, you will need to formally apply to the VLSB for professional indemnity insurance exemption. We will then be in a position to grant you with a barrister practising certificate when we have written confirmation from the VLSB that you have been granted with an exemption pursuant to section 215 of the Legal Profession Uniform Law.
[25] Exhibit 3, Affidavit of Kai Li Zhu at [52].
On 15 March 2022 the Victorian Bar provided further information to the applicant about the minimum insurance requirements for barristers under the Uniform Law (Victoria) stating the following:[26]
[26] Exhibit 3, Affidavit of Kai Li Zhu at [54].
… the Bar notes that the insurance conditions imposed by the VLSB are not any more onerous than as is required of all persons (including those from New Zealand) who wish to practice as a barrister in Victoria. In this regard, reg 79 of the Legal Profession Uniform General Rules 2015 which sets out the minimum standards of professional indemnity insurance requirements for barristers relevantly provides:
1. Reg 79(5) Professional indemnity insurance must provide indemnity for a minimum of 7 years for run-off liabilities in the event that the insured dies or ceases to engage in legal practice as a barrister for any reason, other than having the insured's Australian practising certificate cancelled as a result of disciplinary action.
Comment: The VLSB has required you to obtain an additional year of run-off insurance, as your current policy only provides for 6 years indemnity.
Clause 7.1 of the Bar Mutual policy states as follows:
Bar Mutual shall indemnify any Insured to the extent of at least the minimum Limit of Cover from time to time prescribed by the BSB in respect of Claims that are made against the Insured during the period up to the sixth anniversary of the end of the Period of Insurance arising out of any acts or omissions giving rise to Civil Liability that occurred prior to the end of the Period of Insurance, unless the Insured or a Successor Practice obtains insurance complying with the requirements imposed by the BSB for the period that immediately follows the Period of Insurance.
2. Reg 79(8) Professional indemnity insurance must provide retroactive cover, except for claims arising out of fraud or dishonesty. However, it is permissible for the insurance to impose a retroactive limitation on cover--
(a) if the retroactive date is the date the barrister commenced to engage in legal practice as a barrister, or
(b) if--
(i) the barrister has previously ceased to engage in legal practice as a barrister and is covered for run-off liabilities arising from that prior practice under another insurance policy, and
(ii) the retroactive date is the date the barrister resumed legal practice as a barrister.
Comment: It is unclear from the terms of the UK Bar Mutual policy whether retroactive cover applies. VLSB seeks your confirmation in relation to this.We note that the VLSB has asked that you provide your renewed policy and schedule by 23 March 2022, or as soon as practicable before the expiration of the current policy (i.e. 31 March 2022). The indication given by the VLSB is that you will be granted an insurance exemption pursuant to section 2015 (6) of the Legal Profession Uniform Law if you are able to comply with the above explained minimum standard.
It is apparent from the above letter that the statutory conditions imposed on the applicant are the same as those imposed on other barristers wishing to practise in Victoria.
The Victorian Bar then made its own enquiries of the applicant’s UK insurance provider, Bar Mutual, and the VLSB. Based upon those enquiries, the Victorian Bar advised the applicant that the VLSB would likely grant the insurance exemption if he purchased one additional year of run off liabilities insurance from Bar Mutual.[27]
[27] Exhibit 3, Affidavit of Kai Li Zhu at [63] to [66].
The applicant has chosen not to purchase the additional year of run off cover from Bar Mutual and, consequently, he has not been granted an insurance exemption from the VLSB. The Victorian Bar has tried to assist the applicant in his dealings with the LPLC and then the VLSB but to no avail because of the applicant’s own refusal to satisfy the requirements of the VLSB.
I conclude that the condition of insurance imposed on the applicant is no more onerous than the condition imposed on all barristers wishing to practise in Victoria. The requirement to have professional indemnity insurance is a statutory requirement in Victoria. The minimum standards for that insurance are provided for in Rule 79 of the Uniform Rules. These minimum standards apply to the applicant and all other barristers wishing to practise in Victoria.
DECISION
In the circumstances where the applicant does not have either an approved insurance policy or an exemption from the requirement to hold an approved insurance policy, the Victorian Bar will not issue a barristers’ practising certificate to the applicant. The correct decision is to grant the applicant a practising certificate on the condition that he complies with the statutory requirements applicable to a barrister under the Uniform Law (Victoria). The decision under review is affirmed.
88. I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
..[sgd]......................................................
Associate
Dated: 20 December 2022
Dates of hearing: 28 & 29 April 2022 Applicant: Self-represented Counsel for the Respondent: S Rosewarne Solicitors for the Respondent: The Victorian Bar Incorporated
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