Meagher and Victorian Bar Incorporated - [2021] AATA 3445

Meagher and Victorian Bar Incorporated [2021] AATA 3445 (28 September 2021)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2021/0392

GENERAL DIVISION )
Re: Jacob Meagher
Applicant

And: The Victorian Bar Inc.
Respondent
DIRECTION
TRIBUNAL:  Deputy President Britten-Jones
DATE OF CORRIGENDUM:            12 October 2021
PLACE:           Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by:

Replacing the anonym “TDHH” with the applicant’s name, “Jacob Meagher”.

...................................................................
Deputy President
Division:GENERAL DIVISION
File Number: 2021/0392
Re:TDHH
APPLICANT

AndVictorian Bar Incorporated
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:28 September 2021
Place:Melbourne

The Tribunal has jurisdiction to review the respondent’s decision with respect to the barristers’ practising certificate. The Tribunal does not have jurisdiction to review the respondent’s decision to refuse the applicant membership to the Victorian Bar Incorporated.
.......[SGD]................................................
Deputy President Britten-Jones
Catchwords
PRACTICE & PROCEDURE – JURISDICTION – Trans-Tasman Mutual Recognition Act 1997 (Cth) (TTRMA) – decision to grant or refuse New Zealand barrister a Victorian barristers’ practising certificate – decision to refuse a New Zealand barrister membership to the Victorian Bar – whether the Tribunal has jurisdiction to review these decisions – meaning of ‘decisions made in the exercise of powers conferred by that enactment’ – whether a decision to grant a practising certificate on condition of insurance is a decision made under the TTRMA or the Legal Profession Uniform Law (Victoria) – whether a decision to refuse to grant New Zealand barrister membership to the Victorian Bar is a decision under the TTRMA or under the Constitution of the Victorian Bar – meaning of ‘registration’ under the TTRMA - jurisdiction found for the practising certificate decision – no jurisdiction found for the membership decision
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Associations Incorporation Reform Act 2012 (Cth)
Building Act 1993 (Vic)
Legal Profession Uniform Law Application Act 2014 (Vic)
Mutual Recognition Act 1992 (Cth)
Trans-Tasman Mutual Recognition Act 1997 (Cth)
Tribunals Amalgamation Act 2015 (Cth)
Cases
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Director-General of Social Services v Hales (1983) 47 ALR 281
Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296; (2001) 113 FCR 230
Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99
Hong Kong Bank of Australia Ltd v Timboli (1992) 40 FCR
Re Alan Bond and Minister for Justice (1995) 39 ALD 707
Re Johanson and Civil Aviation Safety Authority [2012] AATA 239; 127 ALD 195
Re Simpson and Australian Maritime Safety Authority [2006] AATA 315
Taylor v Secretary, Department of Social Security (1988) 18 FCR 322
Victorian Building Authority v Andriotis [2019] HCA 22; (2019) 268 CLR 168
Secondary Materials
Explanatory Memorandum for the Trans-Tasman Mutual Recognition Bill 1996 (Cth)
Explanatory Memorandum for the Tribunals Amalgamation Bill 2014 (Cth)
REASONS FOR DECISION
Deputy President Britten-Jones
28 September 2021

The applicant, who is anonymised at his request, 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 (barrister only) issued by the respondent (“the Victorian Bar”). If issued with a practising certificate (barrister only) you may apply for membership of the Victorian Bar. There is a regime under the Trans-Tasman Mutual Recognition Act 1997 (Cth) (TTRMA) for New Zealand barristers to be registered as barristers in Victoria. The applicant has applied under the TTMRA to be registered as a barrister in Victoria and to receive a practising certificate. He has also applied to become a member of the Victorian Bar. Neither application has been successful. On 25 January 2021, he applied to the Tribunal for review of the decisions which affect him. The Victorian Bar asks the Tribunal to dismiss the review application for want of jurisdiction with respect to the decisions regarding the practising certificate and the membership.
Background
On 10 July 2020, the applicant wrote to the Victorian Bar and 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 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:
(a)membership of the Victorian Bar is not required in order to practise as a barrister in Victoria and hold a barristers’ practising certificate and that he could hold a barristers’ practising certificate without being a member of the Victorian Bar;
(b)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 and entitled to practise as a barrister; and
(c)the membership requirements of the Victorian Bar are not subject to the TTMRA. The Victorian Bar is an incorporated membership association. Its constitution sets out the rules governing membership. Those rules determine who is eligible to become a member of the Victorian Bar. In the Bar Council’s view, he did not presently meet the eligibility requirements under the constitution.
The applicant responded on 29 September 2020 by asking the Victorian Bar to register his membership as barrister and member of the Victorian Bar and 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 12 October 2020, the Victorian Bar told the applicant to contact the Legal Practitioner’s Liability Committee (LPLC) directly regarding payment options.
On 11 October 2020, the Victorian Bar wrote to the applicant confirming that the Bar Council had resolved that he was entitled to practise as a barrister in Victoria under the TTMRA and:
As such, you will be registered as a barrister on the roll of practitioners maintained by the Victorian Legal Services Board and entitled to practice as a barrister once your practising certificate is granted. In doing so, the Bar Council discharged its obligations under the TTMRA.
The applicant responded on 12 October 2020, advising that he had complied with the requirements for a practising certificate and asking when it will be issued.
On 13 October 2020, the applicant wrote to the LPLC and asked if he could pay his insurance premium by credit card.
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 6 November 2020, the Victorian Bar raised the issue of whether the applicant was a fit and proper person to hold a practising certificate:
… In reviewing your application, some apparent discrepancies in the information you have provided emerged. These matters prompted a review of your publicly available LinkedIn profile which appears to contain further apparent discrepancies.
Section 45 of the Legal Profession Uniform Law (the Uniform Law) provides that the Bar must not grant a practising certificate if it considers that an applicant is not a fit and proper person to hold a practising certificate. In determining whether an applicant is a fit and proper person, the Bar may have regard to the matters specified in rule 13 of the Legal Profession Uniform General Rules 2015. Section 45 of the Uniform Law applies to all applications for a practising certificate, including those made pursuant to the Trans-Tasman Mutual Recognition Act 1997 (the TTMRA).
Request for further information
To assist the Bar in considering whether you are a fit and proper person to hold a practising certificate, we request your explanation of the following matters. Please send your response to me by no later than 23 November 2020.
…
After you provide the information outlined above it will be considered by the Counsel Committee. Once its enquiries are complete it will make a recommendation to the Bar Council about whether it should grant your application for a practising certificate. The Bar Council will then make a final determination.
Further in the letter of 6 November 2020, the Victorian Bar confirmed the Bar Council's resolution that the applicant was ineligible for membership of the Victorian Bar.
The applicant responded to the 6 November 2020 letter and explained that on receipt of his certificate of good character from the New Zealand Law Society and his New Zealand barristers’ practising certificate, the Victorian Bar is required to grant him equivalency in Victoria.
On 9 November 2020, the applicant provided further information and said, "I do not believe that calling my character or conduct into question is at all appropriate".
On 12 November 2020, the Victorian Bar confirmed the process of considering the application, thanked the applicant for providing a copy of his indemnity insurance cover note and asked for evidence that it will cover his intended practice in Australia.
On 19 November 2020, the applicant wrote to the Victorian Bar complaining about his treatment and asking for an exception from the requirement to hold insurance with the LPLC for the purposes of his barristers' practising certificate. He also stated that his current British 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 26 November 2020, the Victorian Bar responded by outlining four outstanding issues including professional indemnity insurance.
The applicant followed up about his application on 5 December 2020, 14 December 2020 and 21 December 2020.
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 and that the Counsel Committee would consider the potential fit and proper matters at its first meeting in 2021, the date for which was not provided.
On 30 December 2020, the applicant responded and said that if on 28 January 2021 the Bar Council did not grant him a practising certificate and membership of the Victorian Bar then he would lodge papers with the Tribunal.
The applicant applied to the Tribunal on 25 January 2021.
On 3 February 2021, the applicant wrote to the Victorian Bar advising that he holds insurance which satisfies the Victorian Legal Services Board.
On 9 February 2021, the Victorian Bar responded:
It is not sufficient that you have satisfied the Victorian Legal Services Board that you hold or are covered by professional indemnity insurance covering your current practice as a principal of a law practice in Victoria. You need to satisfy the Victorian Bar that you have or will have professional indemnity insurance covering your proposed practice as a barrister in Victoria.
At the hearing of this matter, the Victorian Bar advised that the basis of the decision not to issue the practising certificate was that the applicant did not have the required professional indemnity insurance, rather than any character issues.
The applicant argues that the decisions with respect to the barristers’ practising certificate and the membership of the Victorian Bar were both made under the TTMRA. The Victorian Bar denies making any reviewable decision under the TTMRA and points to the Legal Profession Uniform Law (Victoria) (Uniform Law (Victoria)) which “applies as if it were an Act” by operation of s 4 of the Legal Profession Uniform Law Application Act 2014 (Vic) (Application Act). The Victorian Bar says that the correct forum for review of a decision about Australian practising certificates is the Victorian Civil and Administrative Tribunal (VCAT) as a designated tribunal for the purposes of the Uniform Law (Victoria).
To resolve the question of jurisdiction, it is necessary to consider the legislative framework of both the TTMRA and the Uniform Law (Victoria).
LEGISLATIVE FRAMEWORK
The Trans-Tasman Mutual Recognition Act 1997 (Cth)
The principal purpose of the TTMRA is to enact legislation for the purpose of recognising within Australia regulatory standards adopted in New Zealand regarding goods and occupations. The legislation is 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.[1]
[1] Trans-Tasman Mutual Recognition Act 1997, s 3.
The Explanatory Memorandum for the Trans-Tasman Mutual Recognition Bill 1996 (Cth) provided that:[2]
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.
[2] 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: s 15(2). 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.
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 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 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 Application Act provides that the Uniform Law (Victoria) is the law of Victoria. Part 3 of the Application Act establishes local regulatory authorities including the Victorian Legal Services Board (VLSB).
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.
By instrument of delegation dated 29 May 2018 under s 44(1) of the Application Act, 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 the Uniform Law (Victoria).
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.
Chapter 3 of the Uniform Law (Victoria) deals with legal practice. Part 3.3 deals with Australian legal practitioners. 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.
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).
The right of review in relation to practising certificates is found at s 100 of the Uniform Law (Victoria). It provides:
100 Right of appeal or review about Australian practising certificates
(1) An applicant for or the holder of an Australian practising certificate may, in accordance with applicable jurisdictional legislation, appeal to the designated tribunal against, or seek a review by that tribunal of, any of the following decisions of the designated local regulatory authority under this Chapter—
(a) a decision to refuse to grant or renew the Australian practising certificate;
(b) a decision to vary, suspend or cancel the Australian practising certificate or, without limitation, to impose a condition on the Australian practising certificate;
(c) a decision that a person is not entitled to apply for an Australian practising certificate for a specified period (see section 94).
Section 10 of the Application Act states that the “designated tribunal” for any such application for review is VCAT.
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;
…
Part 2 of the constitution deals with membership:
5. ELIGIBILITY
An Australian lawyer who proposes to practise in Victoria and to practise solely as a barrister may apply to the Bar Council to have that person’s name entered on the Bar Roll.
6. APPLICATION
An application for entry onto the Bar Roll must be in writing in the form prescribed.
7. APPROVAL
7.1 No person’s name shall be entered on the Bar Roll without the Bar Council’s consent by resolution.
7.2 The Bar Council, in its discretion, may resolve that the name of an applicant be entered on the Bar Roll if it is satisfied that the applicant:
(a) intends to practise law, whether in the State of Victoria or elsewhere, only as a barrister and not as a solicitor or a barrister and solicitor;
(b) does not intend to carry on, engage in or practise any business, profession or occupation that is inconsistent with practice as a barrister;
(c) does not, absent dispensation from the Bar Council, directly or indirectly, hold shares or an interest in any legal practice, other than shares representing less than 5% of the votes in a listed company that carries on a legal practice;
(d) does not intend to practise as a barrister in partnership with any person or as an employee of any person;
(e) does not intend to share profits from practice as a barrister with any other person;
(f) has given it such undertakings as are required by any regulations made pursuant to this Constitution;
(g) satisfies the requirements of the regulations made pursuant to this Constitution; and
(h) is a fit and proper person to practise as counsel.
7.3 Upon the passage of a resolution pursuant to clause 7.2 above, the applicant becomes a member of the association.
Part 9 of the constitution regulates the practice of a barrister:
9. PRACTICE
9.1 It is a condition of remaining on the Bar Roll, and thus remaining a member of the association, that counsel shall, whether in the State of Victoria or elsewhere:
(a) not practise otherwise than as a barrister – and not practise as a solicitor or a barrister and solicitor;
(b) not carry on, engage in or practise any business, profession or occupation which is inconsistent with practice as counsel;
(c) not, absent dispensation from the Bar Council, directly or indirectly, hold shares or an interest in any legal practice, other than shares representing less than 5% of the votes in a listed company that carries on a legal practice;
(d) not practise as a barrister in partnership with any person or as an employee of any person; and
(e) not share profits arising from practice as a barrister with any person.
9.2 If the Bar Council is satisfied, on application in writing by any counsel or of its own motion, that there are exceptional circumstances, it may give leave for that counsel to remain on the Bar Roll notwithstanding non-compliance with clause 9.1(a), (b), (c), (d) or (e) on such conditions (if any) and for such period as it thinks fit.
9.3 It is a condition of remaining on the Bar Roll in Division A Part III (Interstate and Overseas Practising Counsel), and thus remaining a member of the association, that, in addition to the requirements of clause 9.1, counsel is and remains:
(a) entitled to practise as a barrister (howsoever described – and whether or not the practice framework includes an independent Bar) in the person’s interstate or overseas jurisdiction; and
(b) a member of the independent Bar association of that person’s interstate or overseas jurisdiction if there is one.
Contentions of the Applicant
The applicant contends that his application under the TTMRA for a barristers’ practising certificate has been effectively denied by the Victorian Bar. He says that, while the Victorian Bar may have at one stage decided to grant him a practising certificate, the Victorian Bar has not yet granted or provided one even though the applicant has complied with all conditions. The applicant says that the Victorian Bar has made a decision to deny registration and has placed ultra vires conditions on him regarding the potential grant of a practising certificate.[3] The applicant says that the Victorian Bar is the local registration authority under the TTRMA with power to grant or refuse registration as a barrister. The decision to refuse to grant a practising certificate is a reviewable decision.
[3] Applicant’s Skeleton Argument dated 10 April 2021 at [5] and Applicant’s Supplementary Submission dated 19 April 2021 at [14].
In the alternative, the applicant contends that the decision is to grant him a practising certificate subject to a condition of obtaining professional indemnity insurance with the LPLC. This would be a decision coming under s 3 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) which says that a reference to a decision includes “imposing a condition or restriction”.
The applicant says that by denying him a practising certificate, the Victorian Bar has breached numerous provisions of the TTMRA including s 15, s 16, s 19, s 20, s 23, s 24, s 33 and s 39, and that the Tribunal is the proper forum that has jurisdiction to decide these issues.[4]
[4] Applicant’s Skeleton Argument dated 10 April 2021 at [8] - [9].
The applicant contends that the refusal to grant him membership of the Victorian Bar amounts to a refusal to allow him to practise as a barrister in Victoria contrary to the purposes of the TTMRA and is therefore a reviewable decision under the TTMRA. The applicant argues that without membership to the “local professional association”, he will find it difficult to gain employment or advertise his services as people use the Victorian Bar’s online portal to find barristers. Therefore, he will not be on equal footing to locally registered barristers and cannot practically carry on the equivalent occupation.
Contentions of the Victorian Bar
The Victorian Bar contends that there are two decisions which should be considered separately:
(a)The decision to grant the applicant a practising certificate once he had complied with the same statutory requirements as Victorian barristers; and
(b)The decision to refuse permission for the applicant to sign the Roll of Counsel (Part 1 of Division A – Victorian practising counsel) on the basis that he was not presently eligible for membership of the Victorian Bar.
The Victorian Bar contends that the entitlement to carry on an equivalent occupation in Australia under the TTRMA is fulfilled by the person who is registered in New Zealand becoming registered in the jurisdiction (Victoria) for the equivalent occupation (barrister) by receipt of a barristers’ practising certificate.
The Victorian Bar notes the focus in Part 3 of the TTMRA on “registration” and says that the registration required to carry on the equivalent occupation by a New Zealand barrister in Victoria, and envisaged by the TTMRA, is by virtue of the grant of a practising certificate (barrister only). The Victorian Bar has the power to issue a practising certificate (barrister only). Once issued, the New Zealand barrister becomes “registered in the jurisdiction for the equivalent occupation” and can practise as a barrister in Victoria.
This process of registration does not require membership of the Victorian Bar which is a separate matter. The Victorian Bar submits that the grant of membership to its association is governed by the terms of its constitution. The Bar Council has considered the application for membership and formed the view that the applicant does not satisfy certain eligibility and approval requirements under the constitution. Consequently, the Bar Council resolved to refuse permission to the applicant to sign the Roll of Counsel. The Victorian Bar contends that this decision is made pursuant to the constitution of the Victorian Bar and is not a decision under the TTMRA and is not a decision reviewable by the Tribunal.
The Victorian Bar provided further written submissions dated 27 April 2021 dealing with the decision made by the Victorian Bar to grant the practising certificate to the applicant once he complied with, inter alia, the mandatory insurance requirements imposed on all barristers. The Victorian Bar accepts that a “decision” under s 3 of the AAT Act includes the imposition of a condition or restriction but says that that is not the only consideration to determine whether jurisdiction is conferred. One must have regard to s 25 (1) of the AAT Act to determine whether that decision was “made in the exercise of powers conferred by that enactment”.
The respondent contends that the jurisdiction of the Tribunal is not enlivened in the present case because the decision made to impose conditions on the practising certificate is not a “decision made in the exercise of powers conferred” by the TTMRA. The exercise of the power conferred on the Victorian Bar to impose the relevant condition, namely the mandatory requirement for approved professional indemnity insurance, is found in s 45 of the Uniform Law (Victoria).
Finally, the Victorian Bar says that the right of review with respect to any decision relating to a practising certificate is found in s 100 of the Uniform Law (Victoria) and is a review by VCAT.
CONSIDERATION
The Tribunal has the power to review decisions in accordance with s 25 of the AAT Act. Section 25 provides:
25 Tribunal may review certain decisions
Enactment may provide for applications for review of decisions
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; …
The reference to decisions in s 25(1) is informed by the interpretation provision in the AAT Act at s 3(3):
(3) Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:
(a) making, suspending, revoking or refusing to make an order or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing.
It follows that the Tribunal can only review decisions where:
(a)an enactment provides that an application may be made to the Tribunal;
(b)there is a decision; and
(c)the decision was made in the exercise of powers conferred by the enactment.
Does an enactment provide for an application to the Tribunal?
The enactment in question is the TTMRA. Section 33 of the TTMRA provides that a decision under the Act may be reviewed by the Tribunal.
Is there a decision made in the exercise of powers conferred by the TTMRA?
This requires consideration as to whether there is a decision and whether that decision was made pursuant to powers conferred by the TTMRA. Separate consideration of each of these elements may be helpful but the question posed by sub-paragraph (a) of s 25(1) requires satisfaction of both elements. This consideration is sometimes described as whether there is a reviewable decision. The ultimate question for me to determine is whether there was a decision made in the exercise of powers conferred by the TTMRA.
Lockhart J provides some guidance with respect to the meaning of “decision” in Director-General of Social Services v Hales (1983) 47 ALR 281 at 305–306:
The Administrative Appeals Tribunal has jurisdiction to review decisions made in the exercise of the powers conferred by particular statutes, not by the Administrative Appeals Tribunal Act itself. Those statutes are many and diverse. They include the Social Services Act 1947, the Migration Act 1958, the Compensation (Commonwealth Government Employees) Act 1971, the Repatriation Act 1920, the Customs Act 1901, and the Insurance Act 1973. Each of the statutes conferring jurisdiction on the Administrative Appeals Tribunal covers a wide range of decisions.
The definition of “decision” in s 3(3) seeks to embrace them all by its ambulatory character. One cannot therefore look to the definition in s 3(3) to determine definitively the meaning of the word “decision”. It must take its colour and content from the enactment which is the source of the decision itself. No narrow or pedantic approach is called for in determining whether a decision falls within the scope of review by the tribunal. The multiplicity of statutes which continue to grow and to confer jurisdiction on the tribunal, and the manifold and diverse circumstances which attract the power of the decision-maker, all call for a liberal approach to the definition of the word 'decision'… It is necessary to examine the Act which confers jurisdiction on the AAT and the administrative framework in which it operates to determine whether there is a 'decision' susceptible of review under the AAT Act. A pronouncement which alters rights or imposes liabilities is readily classified as a ‘decision’, but the word has a wider scope. It may include a declaration or statement which has a real practical effect although not altering rights or imposing liabilities.
It follows that I am to take a liberal approach to identifying a decision, taking into account the legislative context of the conferring legislation.
I now turn to the purported decisions in issue. In its written submissions dated 19 April 2021 the Victorian Bar identified:[5]
…two purported decisions (or failures to make a decision), namely:
(a) To ‘register’ the Applicant as a Barrister in Victoria (which is understood to mean, to grant a practising certificate under the Legal Profession Uniform Law (Victoria) (the Uniform Law)(Issue A); and
(b) To grant membership of the Victorian Bar (Issue B).
[5] Respondent’s Submissions on the Question of Jurisdiction dated 19 April 2021.
I accept the Victorian Bar’s contention that one must not conflate the two issues. There are separate processes and considerations involved in the registration of a barrister and the grant of membership to the Victorian Bar. It is appropriate to separate the application for a practising certificate (and any resulting decision) from the application for membership of the Victorian Bar (and any resulting decision). The applicant contends more broadly that the two are linked but for the purpose of identifying a decision (or decisions) capable of review by the Tribunal I will consider separately the two purported decisions. For ease of reference I will refer to the “Certificate Decision” and the “Membership Decision”.
The Certificate Decision

The Victorian Bar argued at first that no reviewable decision was made because “there was no refusal of registration (to grant a practising certificate) under the TTMRA” and because “a decision was made to grant registration”.[6] It pointed to the resolution of the Bar Council on 17 September 2020 to allow the application for the grant of a Victorian barristers’ practising certificate for the 2020-21 financial year. I reject this submission because it adopts too narrow an approach to the decision which included a condition. There was more to the decision than simply granting registration which is evident from the fact that the applicant has not in fact been granted registration and does not yet hold the practising certificate that he applied for in July 2020. As stated in the 21 September 2020 letter, the decision included a requirement that he “take out compulsory professional indemnity insurance with the Legal Practitioners Liability Committee”. This was confirmed in clear terms on 9 October 2020 when 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.
[6] Respondent’s Submissions on the Question of Jurisdiction dated 19 April 2021 at [3b].
I note that the Victorian Bar clarified its position in further submissions dated 27 April 2021:
2. The decision made by the respondent under the TTMR Act was to grant the practising certificate to the applicant once he complied with inter-alia, the mandatory insurance requirements imposed on all barristers.
3. It is of course the case that a ‘decision’ under the AAT Act in section 3 includes the imposition of a condition or restriction, however that is not the only consideration in whether jurisdiction is conferred. One must then have regard to section 25 (1) to determine whether or not that decision was “made in the exercise of powers conferred by that enactment.”
4. It is also accepted that the definitions of grant and registration are set out in section 4 of the TTMR Act and in this case a decision was made to grant registration or register the applicant, but the actual grant of registration, or registration did not then take place for the permissible reasons set out below.
It is my view that imposing an insurance requirement as part of a decision to grant registration is a decision under s 3(3) of the AAT Act. However, as submitted by the Victorian Bar above, that leaves the issue for determination as to whether that decision was made in the exercise of powers conferred by the TTMRA.
As set out above, I am to take a liberal approach to identifying a decision taking into account the legislative context of the conferring legislation. The relevant provision is s 33(1) of the TTMRA which confers jurisdiction on the Tribunal to review:
a decision of a local registration authority of an Australian jurisdiction in relation to its functions under this Act.
A decision has the same meaning as in the AAT Act.[7] To be reviewable, it must be a decision of the local registration authority which in this case is the Victorian Bar. Further, it must be a decision in relation to its functions under the TTMRA. The requirement in s 33(1) of the TTMRA that the decision be “in relation to its functions under this Act” imports the same (or at least similar) considerations as the requirement in s 25(1) of the AAT Act that the decision be “made in exercise of powers conferred by” the TTMRA. The question as to whether a decision is reviewable therefore requires consideration of the powers and functions contained within the TTMRA that were exercised when the decision was made.
[7] Trans-Tasman Mutual Recognition Act 1997 (Cth) s 33(2).
The relevant functions and powers of the local registration authority (the Victorian Bar) are found in Part 3 of the TTMRA relating to occupations. Those statutory functions and powers include receiving a s 18 notification seeking registration; granting registrations; imposing conditions on registration; postponing the grant of registration; refusing the grant of registration; and giving notice of its decision to grant registration, or to postpone or refuse the grant of registration, or to impose conditions on registration. The TTMRA imposes a time limit on the local registration authority requiring it to carry out its functions of granting, postponing or refusing within one month of the s 18 notice. If not, the person seeking registration is entitled to registration immediately at the end of that period.
I will first consider the decision made by resolution of the Bar Council on 17 September 2020 and conveyed to the applicant by letter dated 21 September 2020. In that letter the Victorian Bar advised the applicant of the resolution and stated that he is eligible to be issued with a barristers’ practising certificate and that:
in order to obtain a practising certificate for 2020/21, you will need to take out compulsory professional indemnity insurance with the Legal Practitioners Liability Committee (LPLC).
The Victorian Bar accepts that the granting of the practising certificate was pursuant to the TTRMA. There is no dispute that the power to grant a practising certificate came from s 19(2) of the TTRMA. However, the Victorian Bar says that:
The jurisdiction of the AAT is not enlivened in the present case because the decision made to impose conditions on the Practising Certificate is not a “decision made in exercise of powers conferred” by the TTMR Act.[8]
[8] Respondent’s Further Submissions on the Question of Jurisdiction dated 27 April 2021 at [5].
The effect of the Victorian Bar’s submission is that there are separate statutory sources for its decision to grant registration (by resolution of the Bar Council on 17 September 2020) and its decision to impose conditions on the practising certificate (conveyed by letter of 21 September 2020). The Victorian Bar submits that the power it exercised when imposing the insurance condition is found in s 45 of the Uniform Law (Victoria).
Section 45 of the Uniform Law (Victoria) makes professional indemnity insurance a prerequisite for the grant or renewal of Australian practising certificates. Section 45 is contained in Part 3.3 of the Uniform Law (Victoria). The objectives of Part 3.3 are set out in s 42:
(a) to provide a system for the grant and renewal of Australian practising certificates in this jurisdiction to eligible and suitable persons who are already admitted to the Australian legal profession in any jurisdiction; and
(b) to facilitate the national practice of law by ensuring that the holders of Australian practising certificates can engage in legal practice in this jurisdiction regardless of their home jurisdiction.
Note
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.
It is apparent from these objectives (and the note thereto) that they have nothing to do with the grant of practising certificates to New Zealand lawyers. This suggests that s 45 was not intended to operate where there is an application for the grant of a practising certificate under the TTMRA.
The applicant has applied under the TTRMA and has purportedly been granted registration under the TTRMA, but the Victorian Bar is suggesting that the condition is imposed under the Uniform Law (Victoria). There is an artificiality in this submission. My view is that there is only one decision, namely a decision to grant registration on the condition that insurance is obtained. If that is the case then there can only be one source of power, which in this case would be the TTRMA. Even if there are two decisions it would seem odd for the Victorian Bar to ignore an available provision within the statutory regime by which the application is brought (namely the TTRMA) and exercise a power under a separate statutory regime which is not the subject of the application. It is not enough for the Victorian Bar to assert that it was exercising power under the Uniform Law (Victoria) and not the TTRMA—it is necessary to consider objectively the exercise of the power and its legislative source.
The Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) refers to a decision “made … under an enactment”. The authorities under the ADJR Act provide guidance to the interpretation of the similar phrase with respect to decisions found in s 25(1)(a) of the AAT Act. Black CJ said in Hutchins v Deputy Commissioner of Taxation (1996) 65 FCR 269 at 271:
It is clear that there may be a decision ‘under an enactment’ within the meaning of that expression in the ADJR Act notwithstanding that the enactment concerned does not expressly require or authorise the decision in question but does so impliedly.
In Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296; (2001) 113 FCR 230 at 250–251, Finn J said in the same context:
The second quality required of a ‘reviewable decision’ is that it be a decision ‘made under’ an enactment...
This test requires there to be a ‘sufficient connection’ between the text of the statute in question and the decision sought to be reviewed...
This ‘sufficient connection’ requirement itself effects a balance between the policy, on the one hand, of allowing effective redress to persons aggrieved by administrative decision making processes (so enhancing those processes), and that, on the other hand, of protecting the efficient administration of government from impairment by an extended conception of a reviewable decision...
The High Court in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 said at [89]:
The determination of whether a decision is "made ... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made ... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.
Sections 19(2) and 19(5) of the TTMRA are contained within the statutory scheme relating to the Trans-Tasman mutual recognition principle with respect to occupations. The Explanatory Memorandum to the Trans-Tasman Mutual Recognition Bill 1996 confirms that the purpose of the TTMRA is to remove regulatory barriers to the movement of goods and service providers between Australia and New Zealand through the mutual recognition of equivalent occupations.[9] It is clearly within this purpose that local registration authorities are empowered to provide practising certificates and impose certain conditions.
[9] Explanatory Memorandum, Trans-Tasman Mutual Recognition Bill 1996 (Cth)
Section 19(5) reposes power in a local registration authority to impose conditions on registration. In Victorian Building Authority v Andriotis [2019] HCA 22; (2019) 268 CLR 168 at 179 [29] (Andriotis), the High Court considers 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 confirms 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 [28] – [29], the High Court says:
The VBA submits that a person registered in the first State cannot be said to have an absolute entitlement to registration. This may be seen by the operation of s 17(2) with respect to a State law. The VBA gives as an example s 169(2)(e)(i) of the Building Act, which requires an applicant for registration under that Act to prove that they have insurance cover. Section 17(2) would permit that requirement to be imposed.
The answer to the submission lies in 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.
Section 169(2)(e) of the Building Act 1993 (Vic) 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 power to impose an insurance condition on the applicant’s practising certificate is pursuant to the TTMRA.
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. To use the case before me as an example, the insurance obligation imposed by s 19(5) as a condition of registration could not be more onerous than the insurance obligation imposed as a condition of registration on a barrister in Victoria under s 45 of the Uniform Law (Victoria). Section 19(5) operates to regulate the imposition of conditions on registration by requiring that they be no more onerous than local conditions.
The Victorian Bar relied upon a Tribunal decision of Re Alan Bond and Minister for Justice (1995) 39 ALD 707 which followed the Federal Court decision of Hong Kong Bank of Australia Ltd v Timboli (1992) 40 FCR 402 (Hong Kong Bank). In Hong Kong Bank the Full Court considered whether s 597(1) of the Corporations Act 1989 (Cth) was the source of a power or merely provided a description of who had authority to exercise certain powers that were sourced elsewhere. I do not find that analysis particularly helpful because it cannot be said that s 19(2) or s 19(5) of the TTMRA is merely descriptive and does not contain dispositive powers. They provide power to grant a registration and to impose conditions on it.
In my view, where there is a decision to grant registration under the TTMRA on a conditional basis, the power to impose conditions attached to that registration must come from the TTRMA. Otherwise, the regulatory effect of s 19(5) would be rendered ineffective. In other words, if, as the Victorian Bar argues, it was exercising power under s 45 of the Uniform Law (Victoria) when imposing the condition of insurance on the applicant’s registration, then the Victorian Bar would not be subject to the obligation in s 19(5) to “not impose conditions that are more onerous than would be imposed in similar circumstances”.
Therefore, the decision to grant the practicing certificate with a condition to obtain insurance is a decision under s 19(5) of the TTMRA. There is a ‘sufficient connection’[10] between the text of s 19(5) and the decision to impose insurance as a condition of the grant of the practising certificate. Further, the two limbs of Tang are satisfied because s 19(5) authorises the decision to grant a practising certificate on the condition that the applicant obtains insurance and this decision affects the right of the applicant to obtain a practicing certificate. It follows that the Victorian Bar, as the local registration authority, has made a decision in relation to its functions under the TTRMA and in the exercise of it powers conferred by the TTRMA. By operation of s 33(1) of the TTRMA, the applicant may apply to the Tribunal for review of such a decision.
[10] Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296; (2001) 113 FCR 230.
A Later Decision?
The applicant has queried the characterisation of the decision with respect to the practising certificate purported to have been made on 21 September 2020. He says that the Victorian Bar did not grant his application or deal with it within the one-month period prescribed by s 20 of the TTMRA. On 29 September 2020, the applicant told the Victorian Bar by letter that a failure to grant his registration was a breach of the TTRMA. The Victorian Bar still did not grant the registration but instead continued to raise issues with the applicant’s insurance.
A problem with respect to the insurance requirement arose when the LPLC advised on 28 October 2020 that cover could not be provided because the applicant was not going to live or practise in Victoria. It is apparent that the condition imposed on 21 September 2020 that the applicant obtain insurance through the LPLC was changed to a requirement that he obtain an exemption from the Bar Council and, further, that he satisfies the Bar Council that he is a fit and proper person. The applicant responded to the fit and proper allegations and informed the Victorian Bar that he had an adequate policy. The issue became whether the applicant’s British Bar Mutual policy made him eligible for an exemption to the requirement to hold a policy with the LPLC.
The Victorian Bar advised the applicant that it would consider his exemption application on 28 January 2021. The applicant responded by saying that if registration was not granted then he would apply to the Tribunal. The Victorian Bar did not grant the registration at the meeting. In the circumstances of the repeated requests by the applicant and a failure of the Victorian Bar to grant registration in the context of a statutory scheme which provided for an expeditious process of registration, the conduct of the Victorian Bar amounted to a refusal. Whilst the Victorian Bar never expressed their position as a refusal, that was the effect.
An example of this approach is the Tribunal decision of Re Simpson and Australian Maritime Safety Authority [2006] AATA 315. Mr Simpson, a maritime engineer, applied for the issue of an Engineering Class 2 (Motor) Certificate in accordance with certain statutory provisions (Marine Orders). The General Manager of the Australian Maritime Safety Authority advised Mr Simpson that he must complete the Australian Maritime Safety Authority approved course again before being eligible for issue of the certificate. A question arose as to whether a reviewable decision had been made. The Tribunal stated:
24. The General Manager determined that the Marine Orders required that the approved course must have been completed within the stipulated timeframe, this before attendance at an update approved course could be dispensed with. Mr Simpson was advised that he "must complete the AMSA approved course before being eligible for issue of the certificate".
25. The General Manager in his letter stated that Mr Simpson must complete the approved course before being eligible for issue of the certificate. This was tantamount to a refusal to give a certificate and refusal to give consent to dispensing with completion of the course, each on the basis of the factual situation as it then was, and now is; decisions within the meaning of section 3 of the Administrative Appeals Tribunal Act 1975.
26. It may be that the decision of the General Manager was correct. But this issue is not the subject of the present application.
27. I am satisfied that the Tribunal has jurisdiction in this matter. The General Manager made a decision as that word is defined in section 3 of the Administrative Appeals Tribunal Act 1975. He refused to give a certificate and/or refused to give consent to dispensing with completion of the course.

The effective refusal by the Victorian Bar amounted to a decision which although not made in accordance with the timeframe prescribed by the TTMRA, was nevertheless a decision made under the TTMRA.[11] This is because s 25(1) encompasses decisions made in the purported exercise of powers conferred by an enactment, regardless of whether the decision is legally valid.[12]
[11] For the power to refuse registration, see Trans-Tasman Mutual Recognition Act 1975 s 22.
[12] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338.
There are therefore two possible decisions:
(a)the decision on 21 September 2020 to grant the practising certificate with the condition that the applicant obtain insurance; and
(b)the decision on 28 January 2021 to refuse the application for the practising certificate.
It is apparent from the correspondence between the parties that the Victorian Bar changed the condition set out in its 21 September 2020 letter and reconsidered whether to grant the practising certificate based on new fit and proper allegations. I note that, although not relevant on this application, the TTMRA does not allow the local registration authority to consider any requirements relating to character for the purpose of registration.[13] However, by raising these allegations as to whether the applicant was fit to carry on the profession of a barrister, the Victorian Bar effectively revisited its original decision and reopened the decision as to whether to grant the applicant registration.
[13] Victorian Building Authority v Andriotis [2019] HCA 22; 268 CLR 168.
As a general principle, subject to the empowering legislation, once a decision maker makes their final decision, the decision maker is functus officio, meaning they may not revisit the decision.[14] However this rule is not applied rigidly if it is inconsistent with principles of good administration and fairness.
[14] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR; [2002] HCA 11 at [6] – [8].
Deputy President Jarvis in Re Johanson and Civil Aviation Safety Authority [2012] AATA 239; 127 ALD 195 said at [27] that the general doctrine of functus officio should not be applied in circumstances where there is inherent ambiguity in the decision. The decision conveyed on 21 September 2020 is ambiguous as although the Victorian Bar purported to grant the applicant a practising certificate, the applicant was never registered as a barrister. I consider the better view is that the reviewable decision was the later decision to refuse registration on 28 January 2021. This is because the Victorian Bar clearly revisited its earlier decision and effectively refused to grant the practising certificate as the applicant is still not registered.
For the purposes of this jurisdiction application it is sufficient for me to find that the refusal amounted to a decision for the purposes of the AAT Act.
The Victorian Bar clearly made one of the two decisions with respect to the practising certificate. I consider that either decision is a reviewable decision under the TTMRA and it is not necessary to determine which is the reviewable decision as long as jurisdiction is satisfied. This is because the Tribunal will conduct 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.[15] The Tribunal will make findings based on the material before it, and is not restricted to the material that was before the Victorian Bar.[16] Further, the Tribunal will 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.[17]
[15] Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31.
[16] Drake v minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.
[17] Re Johanson and Civil Aviation Safety Authority [2012] AATA 239; 127 ALD 195 at [28].
Conclusion regarding the Certificate Decision
The Tribunal has jurisdiction to review the decision of the Victorian Bar on 28 January 2021 to refuse to grant the applicant a practising certificate. Alternatively, the Tribunal has jurisdiction to review the decision on 21 September 2020 to grant the applicant a practising certificate with an insurance condition.
The Membership Decision
On 21 September 2020, the Victorian Bar refused the applicant’s request for membership to its association because it found him ineligible under the Victorian Bar constitution.
The issue with respect to the decision to refuse the application for membership is whether it was made in the exercise of powers conferred by the TTMRA such that it comes within s 25(1) of the AAT Act.
The Victorian Bar is an incorporated association pursuant to the Associations Act and is governed by its constitution regarding membership applications. The Victorian Legal Services Board delegated to the Victorian Bar the power to issue practising certificates for barristers in Victoria. As I have found, a decision regarding this power is a decision made in the exercise of powers and functions conferred by the TTRMA. However, a decision to refuse membership is a separate function of the Victorian Bar as a local professional association.
Part 2 of the Victorian Bar constitution deals with membership and includes a provision that the Bar Council, in its discretion, may resolve that the name of an applicant be entered on the Bar Roll if it is satisfied of matters set out in the subparagraphs to clause 7.2. The Bar Council resolved at its meeting on 17 September 2020 to refuse permission for the applicant to sign the Roll of Counsel because it was not satisfied that the applicant:
(a)is an Australian lawyer who proposes to practise in Victoria and to practise solely as a barrister – clause 5;
(b)intends to practise law, whether in the State of Victoria or elsewhere, only as a barrister and not as a solicitor or a barrister and solicitor – clause 7.2(a);
(c)does not intend to carry on, engage in or practise any business, profession or occupation that is inconsistent with practice as a barrister – clause 7.2(b);
(d)does not, absent dispensation from the Bar Council, directly or indirectly, hold shares or an interest in any legal practice, other than shares representing less than 5% of votes in a listed company that carries on a legal practice – clause 7.2(c).
The Victorian Bar informed the applicant about the Bar Council’s resolution to refuse him membership by letter dated 21 September 2020. On the face of it, the Victorian Bar decided to refuse the applicant membership under the Victorian Bar constitution and not under the TTMRA.
On 24 September 2020, the applicant responded advising that clause 5 of the constitution was contrary to the TTRMA the purpose of which was to allow New Zealand barristers to be registered without hindrance. Further, the applicant provided information relevant to clauses 7.2 (b) and (c).
On 29 September 2020, the Victorian Bar responded as follows:
For the avoidance of doubt, I wish to clarify that membership of the Victorian Bar is not required in order to practice as a barrister in Victoria and hold a barrister’s practising certificate. That is, you can hold a barrister’s practising certificate without being a member of the Victorian Bar. The Victorian Bar issues practising certificates to all barristers in Victoria irrespective of whether or not they are a member of the Victorian Bar. The power of the Victorian Bar to issue practising certificates to barristers comes via delegation from the Victorian Legal Services Board.
…
However, the membership requirements of the Victorian Bar are not subject to the TTMRA. The Victorian Bar is an incorporated membership association. Its Constitution sets out the rules governing membership. Those rules determine who is eligible to become a member of the Victorian Bar. In the Bar Council’s view, you do not presently meet the eligibility requirements.
The applicant responded by saying:
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.
There was further correspondence, but the Victorian Bar made its position clear by letter dated 6 November 2020:
Your application to become a member of the Victorian Bar is separate to your application for a barrister’s practising certificate.
As outlined by my colleague, Travis McKay, the Bar Council considered your application for membership on 17 September 2020. As you are aware, the Bar Council determined that you were ineligible for Victorian Bar membership for the reasons set out in the letter to you of 21 September 2020.
I understand that you are unhappy with the Bar’s decision and believe you are entitled to membership under the TTMRA. The Bar does not agree.
If your circumstances change such that you can satisfy the membership eligibility requirements of the Victorian Bar Constitution, you are welcome to reapply for membership. Otherwise, bar considers the matter closed.
By email dated 12 November 2020, the applicant reiterated that his application for membership was under the TTRMA relying upon ss 3, 16(1), 19(1) and 39(1) of the TTRMA.
The applicant’s argument contains numerous elements which include as follows:
(a)calling oneself a ‘member of the bar’ is synonymous with practicing as a barrister in Victoria;
(b)the applicant’s membership of the New Zealand Bar Association is an integral part of his occupation as a barrister in New Zealand and that to carry on an equivalent occupation in Australia in accordance with the Trans-Tasman mutual recognition principle, he should be entitled to membership of the Victorian Bar;
(c)not being a member of the Victorian Bar will affect the applicant’s ability to attract and retain clients;
(d)the Victorian Bar cannot ignore the TTRMA and purport to make a decision under its constitution with respect to membership;
(e)despite the TTRMA not specifically referring to membership of the Victorian Bar, the applicant says it has operation because he is a New Zealand barrister seeking to be registered in Victoria;
(f)the decision to refuse membership is made in the exercise of powers conferred by the TTRMA; and
(g)the decision to refuse membership, although a breach of the TTRMA, is still made pursuant to it and therefore can be reviewed by the Tribunal.
It is apparent from ss 16 and 19 of the TTRMA that the entitlement to carry on an equivalent occupation in accordance with the Trans-Tasman mutual recognition principle is achieved by providing for an entitlement to be registered in the equivalent occupation. Registration is the key element found within Part 3 of the TTRMA dealing with occupations. Section 16(1) provides an entitlement “to be registered in the jurisdiction for the equivalent occupation”. Section 17(2) refers to the situation where “the individual is subject to more than one system of registration”. Section 18(1) refers to a person “seeking registration for the equivalent occupation”. Section 19(1) refers to a person “entitled to be registered in the equivalent occupation”. Section 19(2) provides that “the local registration authority may grant registration…and may grant renewals of such registration.” Section 20(4) provides that if registration is not granted, postponed or refused within one month, “the person is entitled to registration immediately at the end of that period”. Section 21 provides that a local registration authority may postpone the grant of registration. Section 22 provides that the local registration authority may refuse the grant of registration.
The meaning of registration is defined in s 3 to include:
admission, certification (including by way of practising certificates), or any other form of authorisation, of a person required by or under legislation for carrying on an occupation.
The first part of that definition is broad enough to include admission to the Victorian Bar, but the second part provides that the admission is “required by or under legislation for carrying on an occupation”. I interpret the second part of that definition as imposing two requirements relevantly:
(a)the admission is required by or under legislation; and
(b)the admission is required for carrying on an occupation.
With respect to the first requirement, the reference to legislation must be a reference to the legislation of, in this case, Victoria. This interpretation is consistent with the definition of local registration authority which means:[18]
…the person or authority in the jurisdiction having the function conferred by legislation of registering persons in connection with their carrying on that occupation in the jurisdiction.
[18] Trans-Tasman Mutual Recognition Act 1977 (Cth) s 4.
In other words, for the Trans-Tasman mutual recognition principle to apply there must be a legislative requirement for registration in the jurisdiction of Victoria. I consider that there is no legislative requirement to join the Victorian Bar because the procedure for being admitted as a member is provided by the rules of the Victorian Bar constitution and not by legislation.
Although the Victorian Bar derives its legal capacity from s 29 of the Associations Act and s 30 provides general powers, it cannot be said that admission is required by or under this legislation. By operation of s 46 of the Associations Act, the rules of an incorporated association, as set out in its constitution, are taken to constitute the terms of a contract between the association and its members. Rule 13.1 of the Victorian Bar constitution provides that subject to and read with the Associations Act, the rights, obligations and liability of members are as set out in the constitution and each member has a contractual obligation to comply with the constitution and any regulations made under it. There is no legislative regime for the admission of members to the Victorian Bar.
The admission of a barrister to the Victorian Bar under its constitution can be contrasted with the grant of a practising certificate to a barrister which is a legislative requirement under the Uniform Law (Victoria). As stated earlier in these reasons, the VLSB delegated to the Victorian Bar certain functions, duties and powers relating to persons practising solely as barristers including the power to grant an Australian practising certificate under ss 44 and 45 of the Uniform Law (Victoria). The delegated powers did not include the power to admit members to the Victorian Bar because that is a power sourced from its constitution and not the Uniform Law (Victoria). To conclude, the grant of a practising certificate is required by the Uniform Law (Victoria) in order to carry on the occupation of a barrister, but admission to the Victorian Bar is not required by legislation to carry on that occupation.
With respect to the second requirement, there are undoubtedly certain benefits for a barrister in becoming a member of the Victorian Bar, but membership is not required to carry on the occupation of a barrister in Victoria. As previously stated, in order to practise as a barrister in Victoria you require a practising certificate, but you do not need to be a member of 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. There is no reference in this definition to being a member of the Victorian Bar. Upon the grant of the practising certificate you will be registered as a barrister on the roll of practitioners maintained by the Victorian Legal Services Board and entitled to practise as a barrister.
I have found that neither of the two requirements in the second part of the definition of registration are made out. It follows that a decision by the Victorian Bar to refuse membership is not subject to the Trans-Tasman mutual recognition principle and is not a decision under the TTRMA.
Further support for my conclusion comes from a consideration of ss 17(2) and 19(1) of the TTRMA.
Section 17(2) of the TTMRA provides that Part 3 extends to an occupation carried on by an individual, where the individual is subject to more than one system of registration and accordingly Part 3 applies in relation to each such system of registration. It could be argued that the occupation of a barrister involves more than one system of registration; namely, registration to obtain a practising certificate and registration to become a member of the Victorian Bar. Part 3 of the TTRMA applies to each system of registration. Therefore, it could be argued that any decision with respect to membership is governed by Part 3 and that a decision to refuse membership is a decision made in the exercise of powers conferred by s 22 of the TTRMA.
The question arising on the argument postulated above is whether the process for admitting a member of the Victorian Bar is a “system of registration” for the purposes of the TTRMA. I would answer that question in the negative. Section 17(2) does not apply to the occupation of a barrister because a barrister in Victoria is subject to only one legislative system of registration. Membership of the Victorian Bar is not a system of registration for the purposes of s 17(2) because the definition of registration in s 4 is not satisfied.
Further support for this interpretation is found in s 19(1) of the TTMRA which creates a fiction that the law of the jurisdiction that deals with registration expressly provides that registration in New Zealand is a sufficient ground of entitlement to registration. The reference to the “law of the jurisdiction that deals with registration” must, in the context of the definition of registration, be a reference to the legislative regime. The fiction created by s 19(1) of the TTMRA could only be worked through if there was in fact a “law” that dealt with registration (in this case admission to the Victorian Bar). There is no law in Victoria governing the admission to the Victorian Bar, rather there is a constitution, the rules of which provide contractual rights to its members. These are rights imposed by contract and not by a legislative regime.
The outcome would be different if the rules governing admission to the Victorian Bar had legislative force such that admission was required by legislation to carry on the occupation of a barrister in Victoria. Further, I do not consider that the Trans-Tasman mutual recognition principle requires that New Zealand barristers must be accepted into local professional associations to achieve equivalency. Section 16 clearly refers to the entitlement of a New Zealand practitioner to be “registered” in their equivalent profession in Australia, and, as I have discussed above, registration only refers to requirements under legislation.
Conclusion regarding the Membership Decision
The Tribunal finds that the decision to refuse membership to the Victorian Bar was a decision made under the rules of the Victorian Bar constitution. It was not a decision made in the exercise of powers conferred by any enactment, including the TTMRA, and therefore the Tribunal does not have jurisdiction to review the decision.
CONCLUSION
The Tribunal has jurisdiction to review the decision of the Victorian Bar with respect to the barristers’ practising certificate.
The Tribunal does not have jurisdiction to review the decision to refuse the applicant membership to the Victorian Bar.

I certify that the preceding 131 (one hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

.....[SGD]......................................................
Associate
Dated: 28 September 2021

Dates of hearing:
20 April 2021 and 10 May 2021

Representative for the Applicant:
Self-Represented

Counsel for the Respondent: Ms Naomi Hodgson

Solicitors for the Respondent: Victorian Bar In-House Counsel

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/0392
GENERAL DIVISION	)

Dates of hearing:	20 April 2021 and 10 May 2021
Representative for the Applicant:	Self-Represented
Counsel for the Respondent:	Ms Naomi Hodgson
Solicitors for the Respondent:	Victorian Bar In-House Counsel