Sande v Registrar, Supreme Court of Queensland

No judgment structure available for this case.

C A T C H W O R D S

ADMINISTRATIVE LAW - application to review refusal to register as conveyancer pursuant to the Mutual Recognition Act 1992 (Cth) - whether equivalence of occupation for the purposes of registration under the Act - whether Tribunal correct in looking at whether lawful "occupation, trade, profession or calling" of `conveyancer' existed in Queensland at the time of registration.

ESTOPPEL - whether previous judgment acts as an issue estoppel against applicant.

MUTUAL RECOGNITION ACT - origin and Constitutional basis of the Act - purpose and construction of the Act - meaning of `equivalent occupation' in s.16(2) - relationship of Act to Supreme Court Act 1867 (Qld) - history of vocation of `conveyancer' - purpose and significance of Legal Practitioners Amendment Act 1938 (Qld) s.2 & Legal Practitioners Acts Amendment Act 1954 (Qld) s.2 - whether Registrar of the Supreme Court of Queensland is "a local registration authority" under the Act.

Legal Practitioners Act Amendment Act 1938 (Qld) - s.2
Legal Practitioners Acts Amendment Act 1954 (Qld) - s.2
Mutual Recognition Act 1992 (Cth) - ss.4(1), 16(2), 17(1), 19(1), 20(1), 28, 29(1), 29(2), 31(1)
Mutual Recognition (Queensland) Act 1992 (Qld)
Queensland Law Society Act (1952) (Qld) - ss.38, 39
Supreme Court Act 1867 (Qld) - s.42

Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577
Wood v Queensland Law Society Incorporated (unreported, 1 February 1995)

PAUL ALEXANDER SANDE v THE REGISTRAR, SUPREME COURT OF QUEENSLAND and QUEENSLAND LAW SOCIETY INCORPORATED
No. QG 141 of 1995

Davies, Lockhart & Spender JJ.
Brisbane
13 February 1996

IN THE FEDERAL COURT OF AUSTRALIA                  )
  )
QUEENSLAND DISTRICT REGISTRY  )   No. QG 141 of 1995
     )
GENERAL DIVISION     )

On appeal from the Administrative Appeals Tribunal

BETWEEN:PAUL ALEXANDER SANDE

Applicant

AND:THE REGISTRAR, SUPREME COURT OF QUEENSLAND

First Respondent

AND:QUEENSLAND LAW SOCIETY INCORPORATED

Second Respondent

CORAM: Davies, Lockhart & Spender JJ.

DATE: 13 February 1996
PLACE: Brisbane

MINUTE OF ORDER

THE COURT ORDERS THAT:-

The appeal be dismissed with costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA                  )
  )
QUEENSLAND DISTRICT REGISTRY  )   No. QG 141 of 1995
     )
GENERAL DIVISION     )

On appeal from the Administrative Appeals Tribunal

BETWEEN:PAUL ALEXANDER SANDE

Applicant

AND:THE REGISTRAR, SUPREME COURT OF QUEENSLAND

First Respondent

AND:QUEENSLAND LAW SOCIETY INCORPORATED

Second Respondent

CORAM: Davies, Lockhart & Spender JJ.

DATE: 13 February 1996
PLACE: Brisbane

REASONS FOR JUDGMENT

Davies J:- This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") constituted by the President, Justice J H Mathews, Deputy President D P Breen and Member E K Christie. One of the issues before the Tribunal was whether the applicant, Paul Alexander Sande, who was registered as a land broker in South Australia, was entitled to be registered as a conveyancer in Queensland pursuant to the provisions of the Mutual Recognition Act 1992 (Cth) ("the MR Act"). The MR Act was passed following a reference of power by the States to the federal Parliament under s.51 (xxxvii) of the Constitution, the reference by the Parliament of Queensland being
contained in the Mutual Recognition (Queensland) Act 1992 (Qld).

The MR Act applies both to goods and to occupations. Relevant provisions with respect to occupations are:-

"4.(1)In this Act, unless the contrary intention appears:

...

`local registration authority' of a State for an occupation means the person or authority in the State having the function conferred by legislation of registering persons in connection with their carrying on that occupation in the State;

`occupation' means an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted;

...

`registration' includes the licensing, approval, 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;

...

16.(2) This Part deals with the ability of a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State.

...

17.(1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:

(a)to be registered in the second State for the equivalent occupation; and
(b)pending such registration, to carry on the equivalent occupation in the second State.

...

19.(1) A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle.

...

20.(1) A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law
of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.

...

28.The equivalence of occupations carried on in different States is to be determined in accordance with this Part.

29.(1) An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).

(2) Conditions may be imposed on registration under this Part so as to achieve equivalence between occupations in different States.

...

31.(1) On a review, the Tribunal may make an order that a person who is registered in a particular occupation in a particular State is or is not entitled to registration in another State in a particular occupation, and may specify or describe conditions that will achieve equivalence."

It is fundamental to the operation of these provisions that there be an equivalence between occupations carried on in different States. Such equivalence will exist where the activities authorised to be carried out under each registration are substantially the same. Equivalency may be achieved by means of the imposition of appropriate conditions.

Mr Sande is a land broker lawfully registered to carry on the practice as such in South Australia. The Tribunal did not find it necessary to determine the issue whether that occupation was substantially the same as that which for many years was carried on by conveyancers in Queensland. The issue considered by the Tribunal was whether, when Mr Sande lodged his application in Queensland for registration, there was in Queensland an occupation of "conveyancer".

Section 42 of the Supreme Court Act 1867 (Qld) provided for the certification of conveyancers other than barristers and solicitors. Rules of the Supreme Court of
Queensland of 3 September 1931 provided for the examination and certification of conveyancers and for the signing of the Roll of Conveyancers. The Queensland Law Society Act (1952) (Qld), provided for the grant of annual practising certificates to solicitors and conveyancers. The Queensland Law Society Act expressly provided in s.38 that no conveyancer should act or practice as such unless the conveyancer had obtained a certificate under s.38 of that Act to the effect that the conveyancer was on the roll of the Supreme Court as a conveyancer and was entitled to practise as a conveyancer. Section 39 of the Queensland Law Society Act made it an offence for a person to so practice or act without a certificate unless the person was a conveyancer in a department of the Government of the Commonwealth or the State acting in the course of his or her official duties. The Act defined "conveyancer" as a person who was duly admitted as a conveyancer of the Supreme Court and who continued to be on the roll.

In the 1930s, it came to be considered both in Queensland and in New South Wales that the occupation of conveyancer should be phased out. Section 2 of the Legal Practitioners Act Amendment Act 1938 (Qld) ("the 1938 Act") provided:-

"2. Notwithstanding anything contained in section forty-two of the `Supreme Court Act of 1867,' but subject as hereinafter provided, no person shall, after the first day of January, one thousand nine hundred and forty, be admitted to practise as a conveyancer nor shall any certificate as provided by the said section forty-two be issued to any such person except in respect of admissions made prior to the aforesaid date; and section forty-one of the `Supreme Court Act of 1867,' `The Legal Practitioners Act of 1905,' and `The Queensland Law Society Acts, 1927 to 1938,' shall be read and construed accordingly:

Provided that any person who on the first day of January, one thousand nine hundred and forty, is serving under articles pursuant to the Rules of the Supreme Court relating to the admission of persons to practise as conveyancers, and who completes the final examination prescribed by such Rules on or before the thirty-first day of December, one thousand nine hundred and forty-one, shall, subject to such Rules, be entitled to be admitted to practise as a conveyancer and to have a certificate as provided in the said section forty-two of the `Supreme Court Act of 1867' issued to him."

This provision was ameliorated by s.2 of the Legal Practitioners Acts Amendment Act 1954 (Qld) ("the 1954 Act") which provided, inter alia:-

"2. Section two of `The Legal Practitioners Act Amendment Act of 1938,' shall not apply with respect to a person who before the first day of January, one thousand nine hundred and forty, had passed the examinations prescribed by the rules relating to the admission of conveyancers of the Supreme Court of Queensland ..."

It appears that only two names were entered on the Roll of Conveyancers after 1940. A Mr G.R. Lumsden was certified as a conveyancer in 1941 and a Mr W.M. Kay was entered on the roll in 1960. The number of conveyancers who practised gradually diminished. Five conveyancers held practising certificates in the early 1980s but the last certificate expired in 1987.

On the evidence before it, the Tribunal concluded that, when on 15 December 1993 Mr Sande sought registration as a conveyancer, there was no such occupation in Queensland. The Tribunal perhaps put the matter in less positive terms. The Tribunal said:-

"we cannot be satisfied that there is an `occupation, trade, profession or calling' of conveyancer within the meaning of the Mutual Recognition Act in Queensland."

On 9 March 1995, prior to the hearing before the Tribunal, Fryberg J. of the Supreme Court of Queensland had refused an application brought by Mr Sande and the Australian Institute of Conveyancers Inc which sought a declaration, inter alia, that on the true construction of the MR Act the occupation of "conveyancer" existed in the State of Queensland and was an occupation within the definition of "occupation" in s.4(1) of the MR Act. No evidence was put before his Honour, however, to indicate whether, as
a question of fact, there was in Queensland an occupation, trade, profession or calling of "conveyancer". His Honour considered that he could not infer the existence of the occupation as a matter of present fact from the references or assumptions in statutes dating from 1867 onwards. His Honour declined to make the declaration sought.

The respondents in this appeal relied upon his Honour's judgment as an issue estoppel against Mr Sande. I do not so regard it. The decision-making powers were conferred by the MR Act upon the registration authorities and the Tribunal, not the courts. The Supreme Court may well have had a review function in relation to decisions of its Registrar. But, even so, it was concerned only with decision-making at the first level. The function of the Tribunal was to form its own view and to come to the "correct or preferable" decision: Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 at 589. The Tribunal was therefore bound to arrive at its own finding of fact.

Evidence was called before the Tribunal but the evidence did not show that any person had carried on practice as a conveyancer in Queensland after 1987 or that it would have been lawful for any person to do so.

The Tribunal recognised that an occupation may relevantly exist notwithstanding that no person happens to be currently registered. If the legislation of a State provides for the carrying on of an occupation in the State and puts in place an appropriate system of registration, the legislation will relevantly recognise the occupation. The MR Act looks to "the ability to carry on an equivalent occupation in another State" (s.16(2)) and to the "system of registration" rather than to the fact that the occupation is carried on or the extent to which it is carried on. Section 3 of the Act states the purpose of the Act to be
the "freedom of movement of goods and services provided in a national market in Australia."

However, it is fundamental that the carrying on of the occupation in the State in which registration is sought is lawful and that there is in place a system of registration of practitioners. The Tribunal considered, in effect, that the Queensland Parliament had enacted the 1938 and 1954 Acts with a view to phasing out and bringing to an end the occupation of conveyancer in Queensland and that the restrictions imposed upon registration by those Acts had succeeded in achieving that object by the end of 1987. By the end of 1987, the occupation of conveyancer had been phased out and was no longer a lawful occupation in Queensland. After 1987, the work previously done by conveyancers was and could be done only by legally qualified solicitors holding current practising certificates.

In my opinion, the approach taken by the Tribunal was the correct one. The MR Act should be applied in a practical, common-sense manner, regard being had to the substance of the matter and to the substantial equivalence of occupations. In this light, it mattered not that there might still be persons in Queensland who were on the roll of conveyancers and who might be entitled to seek a practising certificate. No person had sought to do so after 1987. The occupation had ceased, as Parliament intended. It was not suggested to the Tribunal that any conveyancers remained in Commonwealth or State employment. There being no occupation of conveyancer in Queensland, Mr Sande's application to the Tribunal necessarily failed.

In my opinion, had Mr Sande applied for registration when the occupation existed in Queensland, he would have been entitled to registration, subject to there being a finding of equivalence between the occupation of a land broker in South Australia and that of a conveyancer in Queensland. The provisions of the MR Act override a restriction on registration such as is contained in s.2 of the 1938 Act. Section 20(1) of the MR Act confers an entitlement to registration if the applicant meets the criteria propounded by the MR Act. A local provision such as s.2 of the 1938 Act is not relevant to "equivalence" or to the carrying on of an occupation after registration. However, Mr Sande did not apply for registration at a time when the occupation was carried on lawfully in Queensland.

There was some debate before Fryberg J., before the Tribunal and before this Court as to whether or not there was in Queensland a local registration authority for conveyancers in Queensland. The MR Act intends that the mutual recognition principle should be given effect notwithstanding technical differences between States with respect to qualifications, registration and so on. Had Mr Sande been entitled to registration in Queensland under the MR Act, Mr Sande would have been bound to seek and to obtain, before he carried on practice in Queensland, both registration on the roll of conveyancers held by the Supreme Court of Queensland and a practising certificate from the Law Society of Queensland. Pursuant to s.18(2) of the MR Act accordingly, there would have been two local registration authorities involved. I would respectfully not agree with the finding by Fryberg J. in Sande's case and in Wood v Queensland Law Society Incorporated (unreported, 1 February 1995) that "the Court [the Supreme Court] (is) not a local registration authority for the occupation of conveyancers (assuming that such an occupation presently exists in Queensland)". Had Mr Sande been entitled to registration,
the Supreme Court or its appropriate officer would have been one of the two relevant local registration authorities.

For the reasons I have given, I see no error of law in the decision of the Tribunal. The appeal should be dismissed with costs.

I certify that this and the 8 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.

Associate:

Date: 13 February 1996

IN THE FEDERAL COURT OF AUSTRALIA               )
  )
QUEENSLAND DISTRICT REGISTRY  )        No. QG 141 of 1995
  )
GENERAL DIVISION  )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:PAUL ALEXANDER SANDE
Applicant

AND:THE REGISTRAR
SUPREME COURT OF QUEENSLAND
First Respondent

and

QUEENSLAND LAW SOCIETY
INCORPORATED
Second Respondent

COURT: DAVIES, LOCKHART and SPENDER JJ.
DATE: 13 FEBRUARY 1996
PLACE: BRISBANE

REASONS FOR JUDGMENT
LOCKHART J.
Introduction
This is an appeal from a decision of the Administrative Appeals Tribunal (Mathews J., President, Mr Breen, Deputy President, and Associate Professor Christie, Member) pursuant to s. 44(1) of the Administrative Appeals Tribunal Act 1975. The case raises questions about two subjects which, at first blush, appear to be diverse, but in fact are not: namely, the Mutual Recognition Act 1992 (Cth) ('the Act') and the role of conveyancers.
The applicant, Paul Alexander Sande, is a registered conveyancer in South Australia. On 29 July 1994, pursuant to the Mutual Recognition (Queensland) Act 1992, he applied to the Registrar of the Supreme Court of Queensland ('the Registrar') for registration in Queensland as a conveyancer (the application should have been brought pursuant to the Act, for reasons which shall appear later, but nothing turns on this). Mr Sande lodged a separate application with the Registrar on the same day, seeking admission as a solicitor. Both applications were refused by the Registrar on 2 August 1994.

On 23 August 1994 Mr Sande lodged applications under s. 27 of the Administrative Appeals Tribunal Act 1975 for a review of both decisions. By consent, the two applications were dealt with together by the Administrative Appeals Tribunal ('the Tribunal'), because similar issues appeared to be raised in the two applications. The Queensland Law Society Incorporated ('the Law Society') and the Australian Institute of Conveyancers Incorporated ('the Institute of Conveyancers') were joined as parties to the proceeding, by consent. The hearing before the Tribunal took place on 6 and 7 June 1995.

Prior to the hearing, Mr Sande and the Institute of Conveyancers applied to the Supreme Court of Queensland, on 1 November 1994, for declarations that the occupation of conveyancer still existed in Queensland, and that the local registration authority (an expression that appears in the Act) was the Registrar of the Supreme Court. The matter was argued before Fryberg J. on 20 January 1995. On 9 March 1995, his Honour

delivered judgment, declining to make the declarations sought. The judgment of his Honour assumed considerable significance in the proceeding before the Tribunal.

Two substantial issues were raised before the Tribunal. The first was whether the occupation of conveyancer exists in Queensland; the second was whether, assuming that it does, the Registrar of the Supreme Court of Queensland is the local registration authority.

The Tribunal found that the material before it indicated that the occupation of conveyancer no longer existed in Queensland, assuming it ever did, and that it had ceased to exist before the enactment of the 'mutual recognition legislation'. Thus, the Tribunal held that it could not be satisfied that there is an 'occupation, trade, profession or calling' of conveyancer, within the meaning of the Act, in Queensland. Accordingly, the Tribunal found that Mr Sande's application for registration as a conveyancer in Queensland must fail, and that it must follow that there is no local registration authority under the mutual recognition legislation.

The Tribunal also found that the occupation of a conveyancer in South Australia was not equivalent to that of a solicitor in Queensland, and that the imposition of conditions (the relevance of which I shall explain later when referring to the Act) would not change the position. Accordingly, Mr Sande's second application also failed, and the Tribunal affirmed each of the decisions under review. Mr Sande appealed to this Court from the Tribunal's decision.

The questions argued before us on appeal were whether the Tribunal erred in concluding (a) that it could not be satisfied that there is an occupation, trade, profession or calling of conveyancer in Queensland within the meaning of the Act, and (b) that there is no local registration authority under the Act for registration of conveyancers in Queensland. The case turns essentially upon the first question.

The Mutual Recognition Act 1992 (Cth)
The first task is to consider the Act: its origin, construction and application. The Act forms part of a legislative scheme which involved the enactment of complementary legislation by the Parliament of each of the States and the legislature of each of the Territories and the Commonwealth Parliament. The purpose of the scheme was to establish the legal framework for the mutual recognition by the States and Territories of each other's differing regulatory standards regarding goods and occupations. It sought to remove (a) unnecessary impediments to interstate trade in goods arising from differing State and Territory standards and regulations, and (b) artificial barriers to the mobility of performance of services amongst States and Territories arising from local registration or licensing laws. The Act was perceived by the Commonwealth Parliament and by the Parliaments of the States and legislatures of the Territories as contributing to the creation of a more efficient national market and enhancing Australia's international competitiveness.

The Act arose out of a series of meetings of the Heads of Government of the Commonwealth, States and Territories, which had been conducted over two years or more
with the objective of achieving better relations between the Governments to improve the operation of the national economy. Agreement was reached by the Heads of Government at the Special Premier's Conference in October 1990, and the scheme was finalized on 11 May 1992, when the Heads of Government signed the final agreement endorsing a version of the prospective legislation which was substantially in the form in which the Act was enacted. The agreement required the States and Territories to use their best endeavours to pass the necessary legislation by 31 October 1992, and for the Commonwealth to use its best endeavours to pass legislation by 1 January 1993.

The mechanism for implementing the scheme was s. 51(xxxvii) of the Commonwealth Constitution, which empowers the Commonwealth Parliament, subject to the Constitution, to make laws for the peace, order, and good government of the Commonwealth with respect to:

'(xxxvii) Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law:'

Section 51(xxxvii) of the Constitution has until fairly recently been resorted to only occasionally. A summary of these occasions is to be found in Lumb and Moens, The Constitution of the Commonwealth of Australia, 5th ed., 1995, paragraph 414.

In the case of the mutual recognition legislation, the States and Territories agreed to request and empower the Commonwealth to pass a single Commonwealth Act which,
once enacted by the Commonwealth, would override any State or Territory Acts or regulations that are inconsistent with the principles of mutual recognition set out in the Act.

The use of the word 'matters' in s. 51(xxxvii) envisages the subject of the reference by the States to the Commonwealth as being expressed in either of two ways: (a) in general terms, leaving the detailed implementation of the reference to the Commonwealth Parliament (for example, the Tasmanian Parliament referred the 'matter of air transport' to the Commonwealth with the Commonwealth Powers (Air Transport) Act 1952 (Tas); and see R v Public Vehicles Licensing Appeal Tribunal (Tas);Ex parte ANA Pty Limited (1964) 113 CLR 207 at 225)); or (b), as was the case of the Act, in the conversion of a specific Bill into a law of the Commonwealth. Importantly, as appears from the words of the Constitution, a reference by a Parliament of a State under s. 51(xxxvii) is a reference of a 'matter', not of a power.

Whether a State Parliament retains any power to legislate on a particular subject matter once the reference has been made to the Commonwealth Parliament, and whether a reference once made is revocable (i.e. whether the State Parliament, having enacted its referring legislation, may resume its control over the subject matter), are questions which it is not necessary to consider. Differing views have been expressed by learned authors on them: see Wynes, Legislative, Executive and Judicial Powers in Australia, 1976, p 171. In any case, a State Parliament may refer a matter to the Federal Parliament for a fixed period, as happened here: Lumb and Moens, paras. 410-414; and Lane's
Commentary on the Australian Constitution, 1986, pp. 252-253. If the Commonwealth Parliament does not act on the referred matter, the referring State can continue to legislate in the area: Graham v Paterson (1950) 81 CLR 1.

It is fundamental, however, that once a State has, by its legislation, referred a matter to the Parliament of the Commonwealth, not only is the legislation of that State overridden by the Commonwealth legislation to the extent of inconsistency; but the source of legislative power with respect to it becomes that of the Commonwealth, not of the State. It is Federal law which prevails. This point is of importance in the present case because reference by the States and by the Territories to the Commonwealth Parliament with respect to mutual recognition was achieved by legislation passed by the Parliaments of the States and legislatures of the Territories, which by s. 5 referred to the Parliament of the Commonwealth for a specified period (not earlier than five years from the date of the commencement of the Commonwealth Act, but otherwise fixed by proclamation by the Governors of the States, or Chief Minister of the Australian Capital Territory or Administrator of the Northern Territory), the following 'matter':

'(a)The enactment of an Act in the terms, or substantially in the terms, set out in the Schedule; and
(b)The amendment of that Act (other than the Schedules), but only in terms which are approved by the designated person for each of the then participating jurisdictions.'

The Schedule to the State and Territorial legislation sets out the terms of the Commonwealth Bill, which later was enacted by the Commonwealth Parliament as the
Act. The 'designated person' for a State is the Governor, for the Australian Capital Territory is the Chief Minister, and for the Northern Territory is the Administrator (s. 5(3)). I mention this subject because the application by Mr Sande to the Registrar of the Supreme Court of Queensland on 29 July 1994 was for registration in Queensland as a conveyancer pursuant to the Mutual Recognition (Queensland) Act 1992. That was based on a misconception, as the only relevant legislation in force was the Act, being an Act of the Parliament of the Commonwealth, and action taken under the Act by Federal or State authorities is action taken pursuant to the Act - Federal, not State, law.

Finally, s. 51(xxxvii) envisages either, that matters may be referred to the Parliament of the Commonwealth by the Parliaments of States, in which case they become Federal law; or that States may 'afterwards adopt the law'. In the latter case, instead of conferring on the Commonwealth the power to make Commonwealth laws on a particular matter, a State may by legislation adopt a Commonwealth Act, so providing the Commonwealth Act with the force of State law. This process involves complementary legislation of the Commonwealth and the States, with the States adopting an Act passed by the Commonwealth Parliament pursuant to the Territories power (s. 122) or some other head of power.

I turn to an examination of the Act itself. Part 1 of the Act contains ss. 1 to 7, which deal with 'preliminary' matters, including the following statement of the 'principal purpose' of the Act:

'3. The principal purpose of this Act is to enact legislation authorised by the Parliaments of States under paragraph (xxxvii) of section 51 of the Commonwealth Constitution, and requested by the legislatures of the Australian Capital Territory and the Northern Territory, for the purpose of promoting the goal of freedom of movement of goods and service providers in a national market in Australia.'

Section 4 is the interpretation section to which I shall refer later.

Part 2 is directed to mutual recognition as applying to 'Goods'.

I pass from Part 2 to Part 3 (ss. 16 to 42), which relates to mutual recognition as applying to 'Occupations'. Section 16(2) provides that Part 3 'deals with the ability of a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State'. The first-mentioned State is called 'the first State' and the other State is called 'the second State' (s. 16(3)). The expression 'occupation' is defined in s. 4(1):

'"occupation" means an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted;

Subject to Part 3, a person who is registered in the first State for an occupation is entitled by the Act, after notifying the local registration authority of the second State of the equivalent occupation: (a) to be registered in the second State for the equivalent occupation; and (b) pending such registration, to carry on the equivalent occupation in the second State (s. 17(1)). An exception to the mutual recognition principle embodied in s. 17(1) is expressed in s. 17(2): it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, 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 second State; and (b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.

Section 18(1) states that Part 3 applies to individuals, and occupations carried on by them, and extends to an occupation carried on by an individual where the individual is subject to more than one system of registration or more than one local registration authority in a State; accordingly, Part 3 applies in relation to each system of registration and each such authority (s. 18(2)). The expression 'local registration authority' of a State for an occupation is defined by s. 4(1):

'local registration authority' of a State for an occupation means the person or authority in the State having the function conferred by legislation of registering persons in connection with their carrying on that occupation in the State;'

A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent
occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle (s. 19(1)). The notice must state certain matters specified in s. 19(2)(a) to (h), including a statement of the occupation for which registration is sought, that it is being sought in accordance with the mutual recognition principle, and that the person's registration in any State is not cancelled or currently suspended as a result of disciplinary action.

The expression 'equivalent occupation' is not defined in the Act, but the word 'equivalent' is defined by s. 4(1), when used in relation to an occupation, as having a meaning 'affected by Division 4 of Part 3', to which I shall refer later.

The person who lodges a notice under s. 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provides that registration in the first State is a sufficient ground for entitlement to registration (s. 20(1)). The local registration authority may grant registration on that ground; and may grant renewals of such registration (s. 20(2)). Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in the first State (s. 20(3)). Continuance of registration is otherwise subject to the laws of the second State 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 second State; and (b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation (s. 20(4)). The local registration authority
may impose conditions on registration, but not 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 Part 3, unless they are conditions that apply to the person's registration in the first State or that are necessary to achieve equivalence of occupation (s. 20(5)).

Registration must be granted within one month after notice is lodged with the local registration authority (s. 21(1)); and when granted, registration takes effect from the date the notice was lodged (s. 21(2)). Provision is made for the local registration authority in certain circumstances to postpone or refuse the grant of registration (s. 21(3)).

Section 22 defines the circumstances in which the local registration authority may postpone registration, and s. 23 defines the circumstances in which that authority may refuse registration.

Division 3 of Part 3 (ss. 25, 26 and 27) provides for 'interim arrangements', which in essence authorize the applying person to pursue the equivalent occupation pending registration, once notice has been lodged under s. 19 with the local registration authority (s. 25).

Division 4 (ss. 28 to 32) deals with 'equivalent occupations'.

Section 29 is important. It provides:

'29(1) An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).

(2) Conditions may be imposed on registration under this Part so as to achieve equivalence between occupations in different States.

(3)This section has effect subject to any relevant declarations in force under this Division.'

Section 31 empowers the Tribunal (defined by s. 4(1) as meaning the Administrative Appeals Tribunal), on review, to order that a person who is registered in a particular occupation in a particular State is or is not entitled to registration in another State in the particular occupation, and it enables the Tribunal to specify or describe conditions that would achieve equivalence (s. 31(1)). On such a review, the Tribunal may make a declaration that occupations carried on in two States are not equivalent, but only if the Tribunal is satisfied that: (a) the activities involved in the occupations are not substantially the same (even with the imposition of conditions); or (b) registration in one State should not entitle registered persons to carry on a particular activity or class of activity in the other State in the circumstances mentioned in s. 31(2)(b). The Tribunal is empowered by s. 34(1) to review decisions of a local registration authority in relation to its functions under the Act; and to order costs against a party if that party has acted unreasonably (s. 35).

Ministers from each of two or more States may jointly declare by notice in the Gazette that specified occupations are equivalent, and they may specify or describe conditions that will achieve equivalence (s. 32(1)).

This sufficiently explains the Act for present purposes.

The Tribunal's findings
The Tribunal concluded that the occupation of conveyancer no longer existed in Queensland, and had ceased to exist before the enactment of the Act, even assuming that there was once an 'occupation' of conveyancer in Queensland under the relevant Queensland legislation.

The Tribunal stated in paragraph 43 of its reasons:

'The mere fact that no person is currently engaged in a particular calling does not, as Fryberg J commented, necessarily indicate that no such occupation exists. However when one looks at the legislative and actual history of conveyancers in Queensland, everything suggests that by 1990 the "occupation" of conveyancer, if it had ever existed as a separate entity, had by then ceased to do so. Not only were there no persons registered as conveyancers by then, but the effluxion of time since the door had been closed on registration rendered it impossible, from a practical point of view, that any new registrations would ever be made. Accordingly, for the reasons give by Fryberg J in the proceedings before him, and for the additional reasons relating to the effluxion of time, we cannot be satisfied that there is an "occupation, trade, profession or calling" of conveyancer within the meaning of the Mutual Recognition Act in Queensland.'

Earlier in its reasons the Tribunal had stated that, on the evidence before it, some 56 people had been issued with conveyancer's certificates in Queensland after 1 January 1940 (the significance of the date I shall mention later), that all of them must have obtained their qualifications before that date or at least before 31 December 1941, that five of them were still practising in the 1980s, and that the most recent certificate was issued to a Mr Garde in 1986, and expired in 1987 (the certificates of renewal were for 12 months). Mr Garde had received his initial certificate in 1935, and thus had been a certified conveyancer for 50 years at the time he received his last certificate.

The Tribunal made extensive reference to the findings of Fryberg J. in the litigation before him. They summarized those findings in paragraphs 34 and 35 of their reasons. In paragraph 34 the Tribunal said that it had been argued before it by counsel for the Registrar of the Supreme Court of Queensland, and counsel for the Law Society, that the Tribunal was 'bound' by Fryberg J.'s judgment to find that in Queensland the occupation of conveyancer did not exist. 'Bound' was not intended in the sense that a judgment of the Supreme Court of Queensland is binding upon the Tribunal as a judgment of the Federal Court or the High Court is; but because the doctrine of issue estoppel operated, or alternatively that the matter was res judicata. The Tribunal did not find it necessary to deal with these matters because it found in paragraph 35 (correctly in my view) that Fryberg J. had expressly refrained from making a positive finding whether the occupation of conveyancer did or did not exist in Queensland. The Tribunal said in paragraph 35:

'To the contrary, [his Honour] accepted that it might well exist, but said that he was unable to make a finding to this effect in the absence of any evidence on the matter. Accordingly it could not be said, as was urged before us, that we were prevented from revisiting this issue. Certainly, if no further evidence on the matter had been adduced before us, these arguments, or some of them, might well have led us to adopt Fryberg J.'s finding. However there is nothing in the history of this matter which operated to prevent us from accepting evidence on this issue.'

Findings
The vocation of conveyancer has a long history. In England in the Middle Ages, although a class of professional conveyancers had not arisen, clerks employed by large landowners, or members of monasteries, drew the conveyances needed in the ordinary course of estate management. Indeed, lay conveyancers still flourished in the 16th and 17th centuries. But the increase in the complexity of conveyancing and of land law, reflected in the development of the rules of law and equity, particularly during the 18th century, caused a class of conveyancers, separate from other legal practitioners, to emerge at the end of the 18th century. Although the drafting of conveyancing documents did remain a certain part of the practice of legal practitioners, particularly in the case of mercantile documents; by the beginning of the 19th century, detailed knowledge of the complex law of real property was almost confined to a fairly small number of eminent conveyancers. In 1815, Lord Ellenborough C.J. remarked that the common opinion of conveyancers was the best evidence of the state of the law of conveyancing: Isherwood v Oldknow 3 M&S at 396-7. In 1823, Lord Elden said that 'great weight should be given to that practice' (i.e. of conveyancers): Howard v Ducane Turn & Russ at 87.

There was nothing to prevent persons without legal qualifications establishing themselves as conveyancers up to the early part of the 19th century. It was only in 1804 that the English Parliament made conveyancing the monopoly of the legal profession by Act: 44 George IV, No. 19, s. 14. See generally Holdsworth's A History of English Law, vol. 3 at 219, vol. 6 at 447 and 448, also vol 7 at 384-5; and the final report of the Royal Commission on Legal Services, October 1979, Cmnd 7,648, Chapter 21.3.

But even after 1804, conveyancers continued as a particular branch of lawyers. In explanation of the particularity of the profession of conveyancer, T F T Pluncknett, in his A Concise History of the Common Law, 5th ed., 1956, refers to what he described as the 'suggestion' of Sir Frederick Pollock that the growth of conveyancers as a distinct class from barristers and solicitors was influenced by the fact that Roman Catholics were prevented by the Test Act, 25 Charles II, No. 2, from practising at the bar, and instead they practised as pleaders, and particularly as conveyancers.

More recently, the final report of the Royal Commission on Legal Services states that in England and Wales the parties to conveyancing transactions are normally introduced through an estate agent, and that thereafter solicitors usually act on their behalf. Lawyers are employed in much the same way for conveyancing work in Northern Ireland and Scotland.

In marked contrast is the practise adopted in Sweden, where a comprehensive service is offered by the Swedish Savings Banks Association's Estate Agency, the largest
in Sweden, which may handle all the stages of conveyancing transactions from advising the vendor about marketing his property to arranging for the registration of the purchaser's title: Final Report of the Royal Commission on Legal Services, Chapter 21.3.

In South Africa a conveyancer is an attorney who has specialized in the preparation of deeds and documents which are registrable in a deeds office. He is permitted to do so after practical examination and admission by the Supreme Court of South Africa: R J M Jones, The Law and Practice of Conveyancing in South Africa, 2nd ed., 1976.

The Final Report of the Royal Commission on Legal Services also notes (Vol. 2, pp. 168-170) that in California, Missouri and Texas, lawyers are rarely employed for conveyancing; and that in Ontario and Illinois the purchaser rarely consults a lawyer until after he has signed the binding contract which is prepared by the estate agent.

In New Zealand only holders of current practising certificates as barristers or solicitors or both, or a person acting under the supervision of such a holder, shall act as a conveyancer: Law Practitioners Act 1982 (NZ), s. 65; although in the past the Registrar-General could license fit and proper persons to be landbrokers for business under the Land Transfer Act 1952 (NZ), s. 229. And even now the monopoly held by lawyers is not uncontested - the public interest, largely as a euphemism for lower fees, has been raised as an argument for outside competition: see R Charters, 'The conveyancing monopoly and the public interest', NZLJ, May 1982, at 162.

In New South Wales the practice of conveyancing was carried on by conveyancers from the early days of the colony. Until 1967 they were exempt from the prohibition of persons, not being barristers or solicitors, performing conveyancing work for fee or reward. After 1848 they came under the control of the Supreme Court of New South Wales, and were obliged to pass examinations set by the Master in Equity before being eligible for certification as conveyancers. After the Legal Practitioners' (Amendment) Act 1935 came into operation, persons seeking to practice as conveyancers were required also to qualify to become, and be admitted as, solicitors. That Act provided that, with certain exceptions, a certificate to practice as a conveyancer would not be granted after the commencement of the Act. Subsequently, the Legal Practitioners' (Amendment) Act 1967 inserted s. 13A in the principal Act (i.e. the Legal Practitioners' Act 1898), and provided that the name of any person who at the commencement of the 1967 Act was a certificated conveyancer was to be entered on the Roll of Solicitors. After the enactment of the 1935 Act, certificated conveyancers slowly disappeared; and the effect of the 1967 Act was to abolish the class altogether. See the report of the Law Reform Commission of New South Wales, following its inquiry into the legal profession (The Sackville Report), 27 January 1984; and Baalman's The Torrens System in New South Wales, 2nd ed., 1974, by R A Woodman and P J Grimes.

In Victoria, land brokers, akin to conveyancers, carried on their practice in earlier times; but this was prohibited in 1864 by legislation (Report of the Committee of Inquiry into Conveyancing in Victoria 1980) (The Dawson Report).

In Western Australia, the position is somewhat different. Before 1970, settlement agents emerged in that State. The development was probably assisted by a shortage of solicitors in Western Australia during the period from 1960 to 1970. They primarily prepared the instrument of transfer and the settlement statement concerning the adjustment of rates and taxes etc. Other documents relating to a conveyance of real estate were prepared by a solicitor on the instructions of a settlement agent. The settlement agent also made the necessary title searches, arranged for the documents to be stamped, and attended settlement when the purchase money was paid and received. There were no formal qualifications for settlement agents in Western Australia. In 1976 the Settlement Agents Control Bill was introduced into the Western Australian Parliament in an attempt to regulate the activities of settlement agents; but the Bill was not proceeded with: see the Dawson Report at 4. In 1981 the Settlement Agents Act 1981 (WA) and the subsequent Settlement Agents Regulations 1982 came into operation, which in effect recognised the activities of settlement agents and controlled them by statute. Thus, they remain entitled to carry out the work usually involved in a conveyancing transaction, provided they are licensed by a government agency, and provided they comply with legislative requirements concerning codes of conduct, discipline, and other matters. There are hundreds of licensed settlement agents in Western Australia; and the majority of conveyancing transactions relating to domestic real estate is undertaken by them, rather than by qualified lawyers.

South Australia saw a tumultuous introduction of the Torrens System. Robert Torrens, a former Collector of Customs in South Australia and later Colonial Treasurer
and Registrar-General, introduced into the South Australian legislature a Private Members Bill (No. 15 of 1857) designed to introduce the Torrens System of title. The legal profession was opposed to the Bill, and did not hesitate to speak in robust terms about Torrens personally. In an open letter by one of the persons opposed to the Bill, Torrens is described as being 'more excitable, already sufficiently spasmodic, arrogant, presumptuous and self confident'. Torrens replied in the debate on the Bill by quoting Lord Brougham:

'They [the legal profession] have the mysteries which they have spent so much time learning and they do not like the rude hand which would sweep away the cobwebs in spinning which they have spent their zeal.'

Nevertheless, the Bill was assented to on 27 January 1858; after which Torrens resigned his seat in the House and became the first Registrar-General under the Real Property Act of South Australia. See Jessop G.A. Torrens of the Torrens Title, 18; D Pike, Introduction to the Real Property Act in South Australia, p. 169; D Whalan, Immediate Success of Registration by Title to Land in Australia, p. 423; Beckett, Transfer of Land by Statute, p. 34; and R Torrens, An Essay on the Transfer of Land by Registration, p. 3.

In Torrens' wake, a class of land brokers emerged in South Australia; the members of which are now permitted to undertake conveyancing transactions for fee or reward. The system of conveyancing involving land brokers was introduced in 1860, as a result of
the opposition of the legal profession to the introduction of the Torrens System. Land brokers are permitted to prepare instruments relating to land, and to charge for their services; they are required to be licensed by a Land Brokers Licensing Board, and must obtain the prescribed educational qualifications. There are hundreds of licensed land brokers in South Australia, and they carry out the great majority of conveyancing transactions involving domestic real estate. Most commercial conveyancing, however, is undertaken by solicitors: see The Sackville Report.

Most recently, there has been considerable demand in Australia for change in conveyancing practices, driven to a large extent by the public perception of high conveyancing charges. The Australian Institute of Conveyancers was formed in 1993 to promote the class of conveyancers on the publicly stated ground that the introduction of licensed conveyancers throughout Australia would provide more choice for consumers with more competitive prices.

This stance was acknowledged in the Trade Practices Commission's draft report in 1993, 'Study of Professions', which stated that conveyancing should not be monopolized, that the practice of conveyancing ought be opened to appropriate people other than lawyers, and that consumers should have a choice of conveyancer.

This attitude was endorsed by the Hilmer Report - the Federal Government's study aimed at producing a national competition policy - which suggested that the marketplace should be opened up so that consumers might have at once the best options and the best
protection. Fundamental to the report was the notion that the regulation of bodies providing legal services should be nationally controlled. In this vein, following the Sackville Report, conveyancing fees in New South Wales have been deregulated since 1 July 1994.

Further, the New South Wales Government attempted recently, by introducing The Conveyancers Licensing Bill 1995, to deregulate the practice of conveyancing and extend it beyond the sole province of qualified lawyers. The proposed legislation would have moved the licensing regulation and discipline of conveyancers away from the Law Society of New South Wales, and placed it under the control of the Property Services Council and the Minister for Consumer Affairs; but the Bill was blocked in the Legislative Council in October 1995.

I turn to Queensland. The legal profession in Queensland has two branches: barristers and solicitors. When the colony of New South Wales included much of what is now the State of Queensland, conveyancers carried on their practice throughout the colony, including what is now Queensland.

In 1847 the Governor of New South Wales, with the advice and consent of the Legislative Council, passed 'An Act to regulate the taxation of attorneys' bills of costs and the practise of conveyancing' (11 Vic., No 33). That Act included ss. 13 and 14 which related to conveyancing and conveyancers. Section 13 provided that from 1 January 1848 no person except barristers, attorneys, solicitors or certified conveyancers,
could, for fee or reward, engage in the practise of conveyancing. Section 14 made provision for conveyancers (not being barristers, attorneys or solicitors) to be examined by the Master in Equity of the Supreme Court of New South Wales, touching the applicant's skill and knowledge in conveyancing, as well as his character for integrity. The Master was empowered to grant a certificate to the applicant if he was satisfied of his competence and fitness, and the certificate entitled him to engage in the practise of conveyancing.

By s. 51 of the 'Act for the government of New South Wales and van Dieman's Land' 1842 (5 & 6 Vic., No. 76) (an Imperial Act), power was given to the Queen, by letters patent, to erect into a separate colony any territories which were comprised within the colony of New South Wales lying northward of the twenty-sixth degree of south latitude. The size of this territory was increased by 'An Act for the better government of Her Majesty's Australian Colonies' 1850 (13 & 14 Vic., No. 59), s. 34. The power conferred upon the Queen by s. 51 of the 1842 Act was continued by the 1850 Act.

In 1859 letters patent were issued for the separation of Queensland from New South Wales. At the same time an Order in Council was made empowering the Government of Queensland to make laws, and to provide for the administration of justice, in the colony of Queensland.

In 1867 the Queensland Parliament enacted 'An Act to Consolidate and Amend the Laws relating to the Supreme Court' (31 Vic., No 23). That Act included s. 42, which

made similar provision concerning conveyancers to the provision made by the earlier New South Wales Act of 1847.

Thus, formal recognition to this third category of practitioner, the conveyancer, was introduced by the first Act of the Legislature of Queensland to deal with the matter: namely, s. 42 of the Supreme Court Act 1867 (Qld). The Master in Equity, or other persons appointed by the judges of the Supreme Court to assist the Master, examined applicants for admission to the Roll of Conveyancers 'touching his skill and knowledge in conveyancing as well as to his character for integrity'. The 1867 Act continued the division of the legal profession into barristers and solicitors, but also continued the separate admission of conveyancers.

Persons continued to qualify and be registered as conveyancers in Queensland, and to practise there; but there was growing agitation, especially among solicitors, about the continuance of the calling of conveyancers. In the result, in 1930, the Government of the day introduced into the Queensland Parliament a Bill to amend the Supreme Court Acts 1861 to 1926 and the Legal Practitioners Act 1881. This Bill was the Legal Practitioners Amendment Bill 1938. The Attorney-General, the Honourable J Mullan, reading the Second Reading of the Bill, made a speech which it is useful to recite. It is recorded in Hansard in these terms:

'I wish to point out, however, that after 1 January, 1940, there will be no further admissions of persons to practise as conveyancers in Queensland except students who are now serving articles, whose rights will be fully protected. Any student who
began to serve under articles prior to 1 January, 1940, will be eligible to be admitted as a conveyancer up to 30 December, 1941. All existing rights of conveyancers are preserved under the Bill.

In addition a conveyancer who has for at least five years since he became entitled to practise as a conveyancer been engaged as a clerk in the office of a solicitor, or who has had at least five years' practice as a conveyancer in Queensland, or who has for at least five years since he became entitled to practise as a conveyancer been employed in Queensland within or outside the public service, will, provided he passes his final examination as a solicitor, be entitled to be admitted as a solicitor, subject, of course, to his being a fit and proper person.

At the present time there are almost 116 conveyancers on the roll although only 42 are practising in the whole of the State. Between 1897 up to 1911, a period of 14 years, no person in this State qualified as a conveyancer, and during the last six years only three have entered on articles for the purpose of following this calling.

There are no conveyancers at all in England practising as such. There have been none in Australia except in New South Wales and Queensland. The admission of conveyancers was abolished in New South Wales in 1935. Queensland is the only State yet to fall into line in that regard.

Some people may wonder why it is thought necessary to discontinue the calling of conveyancers. I have before me a note prepared by the president of the Queensland Law Society, which may shed light upon the position. Mr W.P. Rowland, president of the society and a solicitor, states -

"A conveyancer is only trained in certain specialised sections of the law but under present conditions it is practically impossible for him to carry out his professional duties without a much wider knowledge. Changing conditions and legislation affect all transactions and points are continually arising even in simple conveyancing matters which demand a knowledge of legal subjects not always included in the curriculum for admission as a conveyancer."

He further states -

"When the original Supreme Court Act was passed the distinction between what a conveyancer may do and what he may not do was clearer than it is now. By reason of the changes in legislation (as will be shown below) the line is less clear. It is felt that the public are not being served by a murky division which requires that up to a point a conveyancer may do the work and beyond that a solicitor must be employed, especially as the point is hard to find."

and -

"Recent legislation has brought the Courts (where the conveyancer has no part, and for which he has no training) into conveyancing more and more. Examples: the Hire-purchase Agreement Act and the power and duty of the courts to interfere; financial emergency legislation dealing with transactions covered by conveyancing documents allowing courts to interfere; industrial legislation (involving a knowledge of the industrial laws in which the conveyancer is not trained) come into service contracts, partnership deeds, company documents, and many other documents. In short, conveyancing now requires a general legal knowledge and not a partial one."

Mr Rowland proceeds at great length, but I will not tire hon. members by reading it all, although it is very interesting and a very fine document in vindication of the Bill before the House. In conclusion, he states -

"In view of the facilities for legal study now available at the University of Queensland it is unlikely that many will enter into articles of clerkship to qualify as conveyancers as the time occupied in articles and in study, of course, would be nearly as long as would be required to obtain a law degree and admission as a barrister." '

Mr Maher, the Member for West Moreton, addressed the House on the Bill. He is recorded in Hansard as saying (at 1505-1506):

'There is nothing much I can object to very seriously in this Bill. It deals with three specific matters. The first is that no more conveyancers are to be admitted after a specified date; the second that barristers are to be admitted to the ranks of solicitors without examination; and the third certain examinations for solicitors are to be waived in certain cases outlined by the Minister.

The only comment I can make on the first provision is it will terminate the existing system of admitting conveyancers as has existed in this State since The Supreme Court Act of 1867. The practice of conveyancing has, therefore, existed in Queensland for 71 years.

The Attorney-General: Of course, the solicitors will carry on that work.

Mr. MAHER: The Attorney-General seems to suggest that the provisions of the Bill are reasonable from the point of view of the persons directly concerned, but, after all, public interest is involved. I do not intend to press the point any more than to say that the system was doubtless introduced because there was a demand for a cheaper form of legal services.

The Attorney-General: Not cheaper. The regulations dealing with the work of conveyancers prescribes a stipulated fee, and the solicitor can charge no more than that fee if he undertakes conveyancing work.

Mr. MAHER: That is interesting. The general feeling prevails amongst the public that a conveyancer is a specialist in the art of conveyancing which means the transfer of property. A person who specialises in that class of work would necessarily become acquainted with all the points involved to a greater extent than a solicitor who has his time and his interest spread over the whole field of legal work. There has been a distinct inclination on the part of the public to patronise the conveyancer. That is because it was felt that in matters affecting the transfer of property the conveyancer rendered a very useful service, because he was a person of knowledge and accumulated experience in such matters. A decided preference has been shown by property owners for conveyancers in property matters than for solicitors who might also be conveyancers. It is clear from the Minister's statement that there is general agreement in the legal profession on its provisions. I do not know what the views of the conveyancers are.

The Attorney-General: The conveyancers have met and agreed almost unanimously to it.

Mr. MAHER: Obviously there would be unanimity there, too, because the conveyancer has a right to practise as a solicitor. His status has been elevated by his assent to the Bill.

It is evident that conveyancers are members of a dying profession. When the last existing conveyancer passes away we shall see the profession no more. We might be able to say of the conveyancers now practising that they are "the Last of the Mohicans." However, the Bill generally is one which will give satisfaction in legal circles, and in view of the statement of the Minister that there is a fixed rate of charges for conveyancing work, whether done by a conveyancer or a solicitor, there is not much for one to cavil at. That seems to dispose of any suggestion of injury to the public interest. Everybody appears to be happy about the Bill - barristers, solicitors, and conveyancers - and if it affords numbers of young men in the public service an opportunity to qualify as barristers, and as it makes possible the admission of barristers to the ranks of solicitors - things that are apparently considered worth while by those most interested - I cannot see that we can offer any criticism of the Bill; on the contrary, we will support it."

The debate then continued as follows:

'Mr. TAYLOR (Enoggera): I wish to refer to the point mentioned by the Leader of the Opposition, and that is that conveyancers will be able to practise as solicitors under this Act.

The Attorney-General: After they pass the final solicitors' examination.

Mr. TAYLOR: This is a very old profession. If the solicitors are not allowed to charge more than the fees fixed at present for conveyancers it will be all right, but some solicitors are used to writing down in their Clients' Book, "Telephone, Mrs. Smith on your behalf, 2s. 4d.," while the actual cost to them was 2d. for the telephone call. It may be possible for solicitors to increase the cost of conveyancing without committing a breach of the law. If the conveyancers have agreed to the Bill, then conveyancing
has reached a very low ebb; the majority of them must be solicitors as well.

Mr. RUSSELL (Hamilton): I regret the passing of an old profession; still, transfers of real property require more examination of titles than hitherto. In Queensland, the profession of conveyancing was a very profitable and honourable one, and some great names linked with Queensland's history are the names of conveyancers who built up very large businesses that employed large staffs. As a young man, I knew Mr. William Quinn, who was one of our noted men in Queensland, who built up a very extensive conveyancing business. The conveyance of real property formerly was quite a simple matter, but to-day, with the involved legislation that is put through year by year it has become more intricate. For instance, it is now necessary to call in a legal man to make a thorough examination of the title deeds and to see that the property in question is properly described and that there is no fraud in the transfer. At one time all that was necessary was to draw a simple transfer and have a title produced and then have the necessary registration made at the Real Property Office. The process to-day in a great number of instances is that a contract of sale is drawn up specifying the details in regard to the property and the terms of the sale.

It is necessary that this work be entrusted to a legal man. After the agreement has been completed the transfer is drawn up in the terms of the contract, and that also entails a great deal of legal work and a greater expense than hitherto is incurred. As a matter of fact, it is quite a costly process to transfer land, not only as regards the legal expenses but also departmental expenses, the tendency on the part of the Government being to make land transfers more difficult and costly as time goes on.

The profession of conveyancer is becoming out of date and no doubt in a few years the title will be as extinct as the dodo and members of the legal profession will have to do all this work. For the protection of the purchaser it is necessary that intensive investigations should be made in regard to all transfers. The aim of legal men is to see that the purchaser has a proper title that cannot be disputed, and, as I have said, whereas we regret the passing of the profession of conveyancing I am quite sure that in the hands of solicitors the interests of clients will be absolutely protected.

I am glad to know that those students now undergoing training in conveyancing will have their interests protected and, if they so desire, will be entitled to be enrolled as solicitors.'

I have set out these passages from Hansard extensively; not only because they are of historical interest, but because they indicate the problem sought to be solved by the 1938 Bill, and reflect the strongly held view in Queensland in 1938 that the role of a conveyancer, honourable though it was, should come to an end and that conveyancing work should thereafter be done by qualified solicitors (though without endangering the livelihood of those persons who were then qualified, or in the course of qualifying, as conveyancers).

In 1938 the Legal Practitioners Act Amendment Act 1938 (Qld) was enacted, s. 2 of which provided that no person was to be admitted as a conveyancer after 1 January 1940, and that no practising certificate was to be issued to any such person except in respect of admissions made before that date. The proviso to this prohibition was that any person who on 1 January 1940 was serving under articles pursuant to the Rules of the Supreme Court of Queensland relating to the admission of persons to practice as conveyancers, and who completed the final examination prescribed by the Rules on or before 31 December 1940, should, subject to those Rules, be entitled to be admitted to practice as conveyancers, and to be issued with practising certificates as provided by s. 42 of the Supreme Court Act 1867 (Qld). These matters are referred to in Harrison, Law and Conduct of the Legal Profession in Queensland, 1984 ed, edited by G N Williams at 5, 6 and 14; also H Gregory, The Queensland Law Society Incorporated 1928-1988 A History 1991, at 14 and 226.

The Legal Practitioners Acts 1881 to 1947 were amended in 1954 by the Legal Practitioners Acts Amendment Act 1954 (Qld), s. 2 of which provided that s. 2 of the Legal Practitioners Act Amendment Act 1938 was not to apply to a person who, before 1 January 1940, had passed the examinations prescribed by the Rules relating to the admission of conveyancers of the Supreme Court of Queensland. In presenting the Bill to be read a first time, the Attorney-General, the Honourable W Power, is recorded in Hansard (p 387) as saying:

'Prior to 1938, a person could be admitted in Queensland to practice as a conveyancer. In 1938, an amendment of the Legal Practitioners Act provided that after 1 January, 1940, no-one could be admitted as a conveyancer unless he was serving articles at the time of the passing of the amending Act and he had qualified for admission as a conveyancer before 31 December, 1941. In effect, no-one could obtain a practising certificate as a conveyancer unless he was admitted prior to 1 January, 1940, or 31 December, 1941.

The Bill will permit a person who was, prior to 1 January, 1940 qualified by examination to be admitted as a conveyancer but who had not been admitted as such, now to be admitted as a conveyancer. It sets out the necessary machinery for admission and for the obtaining of a conveyancer's certificate.

Mr. Hiley:Apart from one or two existing cases there will be no future cases.

Mr. POWER: There can be no future cases. As a matter of fact the bill is for the purpose of making provision to admit one or two persons. There wold not be any more than two. Of course
they will be admitted subject to all the rules and regulations, such as good conduct and things like that.

Mr. Hiley:The Law Society agrees with it.

Mr. POWER: As a matter of fact I always discuss such matters with the Law Society and I discussed this with the Law Society. The Society was quite happy that it was being done. There can be no other persons admitted. It will apply perhaps to only two people.'

In fact, the 1938 Act did not abolish the office of conveyancer. This is explicable on the ground that there were conveyancers in practice then, albeit few in number, along with some others who, though not in practice, were entitled or about to be entitled to practice as conveyancers because of having obtained or being in the course of obtaining the requisite qualifications as they then existed. But save for this small group of people who fell within the proviso to s. 2 of the 1938 Act, maintained by the consistently altruistic regard of Queensland's Governments for the atavistic conveyancer, no person could practice as a conveyancer in Queensland. Now, any person who directly or indirectly acts or practices as a conveyancer, without having a current practising certificate, is guilty of an offence and liable on summary conviction to a monetary penalty, and, in addition, is guilty of contempt of the Supreme Court, and liable to be punished accordingly: Queensland Law Society Act 1952, s. 39.

After 1938 the number of persons on the Roll of Conveyancers in Queensland, and thus entitled to carry on practise as conveyancers, diminished to the point where the last person to hold a practising certificate was a Mr Garde who held his certificate for the 1986-87 year (his initial certificate being for 1935-36). It remains theoretically possible
that someone may exist who is entitled to apply for a practising certificate as a conveyancer, having qualified before 1 January 1940; but practically, this is unreal.

Mr Sande is and has been for about ten years a fully qualified and licensed conveyancer in South Australia. Obviously, he could not qualify for admission to practise as a conveyancer in Queensland in the absence of the Act.

The Act is intended to remove artificial barriers to the mobility of services and labour caused by regulatory differences among the States and Territories of Australia. If a person is registered to carry out an occupation in one State or Territory, then he or she should be able to be registered and to carry on the equivalent occupation in any other State or Territory, without undergoing examinations or other assessments with respect to educational qualifications and experience. Nevertheless, the Act preserves the right of the State or Territory in which the applying person seeks to practise (described in the Act as the second State) to regulate the manner of carrying on an occupation in that State, so long as the laws of that State apply equally to persons carrying on or seeking to carry on the occupation under the law of the second State (ss. 17 and 20 of the Act).

In this way the relevant legislation in Queensland has effectively brought to an end the entitlement of conveyancers to practise in Queensland, unless they are properly qualified solicitors who have been admitted to practice as solicitors. Mr Sande does not fulfil that requirement. The policy of the Queensland Parliament, manifested in the 1938 Act, and plainly reflected in the speeches recorded in Hansard, show that it was intended to prohibit persons carrying on practice as conveyancers, as a separate class of the legal profession, unless admitted or eligible for admission as conveyancers before 1 January 1940, over 50 years ago. The result is that there are no persons carrying on the practice of conveyancers in Queensland; and there have been no such persons since 1987. In these circumstances, in my view it cannot be said that the occupation of conveyancer for which Mr Sande seeks registration in Queensland is an 'equivalent occupation' for the purposes of the Act. Mr Sande's occupation as a conveyancer in South Australia is not equivalent to an occupation of conveyancer in Queensland, because the calling of conveyancer has ceased to exist in Queensland, and persons cannot carry on the practice of conveyancing there unless they are qualified legal practitioners or were admitted or qualified for admission as conveyancers before 1 January 1940.

To uphold the submissions of Mr Sande would be to transform the Act from one which seeks to facilitate the right of Australians entitled to practise in one State or Territory to pursue their vocations throughout Australia without submitting themselves to examinations or obtaining qualifications required by another region, into an Act which forces the will of one State upon another, when the historical development of each has been different, in some cases profoundly different. This is not a conclusion which the Act requires. It may be that in years to come the trend to promote competition and to remove restrictive practices will produce again in Queensland a class of conveyancers. If it does, then the Act will apply, and respond accordingly. At present it is not attuned to do so.

The Tribunal's finding that it was not established on the evidence that there was an occupation of conveyancer in Queensland at the relevant time should not be disturbed.

In the light of these findings it is not necessary to consider the question whether the Supreme Court of Queensland or its Registrar is the local registration authority for the purposes of the Act. Nor is it necessary to consider the argument addressed to the Court on the question of estoppel.

I would dismiss the appeal with costs.

I certify that this and the preceding thirty-five (35) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Associate

Dated: 13 February 1996

IN THE FEDERAL COURT OF AUSTRALIA )
  )
QUEENSLAND DISTRICT REGISTRY     )    No. QG 141 of 1995
  )
GENERAL DIVISION                 )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: PAUL ALEXANDER SANDE
Applicant

AND: THE REGISTRAR
SUPREME COURT OF QUEENSLAND
First Respondent

and

QUEENSLAND LAW SOCIETY

INCORPORATED
Second Respondent

COURT     :    DAVIES, LOCKHART and SPENDER JJ
DATE     :    13 FEBRUARY 1996
PLACE     :    BRISBANE

REASONS FOR JUDGMENT

SPENDER J

I agree that this appeal should be dismissed with costs. I agree with the reasons of Davies J and of Lockhart J. I wish only to add a few observations.

It is plain that the Queensland Parliament in 1938 intended to "discontinue the calling of conveyancers" in Queensland. As Lockhart J has noted, it was said in the course of the parliamentary debate leading to the passing of the Legal Practitioners Amendments Act 1938, that "[i]t is evident that conveyancers are members of a dying profession. When the last existing conveyancer passes away we shall see the profession no more. We might be able to say of the conveyancers now practising that they are 'the Last of the Mohicans'". It was also said that it was necessary that conveyancing work be henceforward entrusted to persons who were legally qualified, because of the intricacies introduced by legislative intervention. The amendment in 1954 was for "the purpose of making provision to admit one or two persons" who had passed their examinations prior to 1 January 1940, but had not been admitted as a conveyancer.

The consequence of that intention, reflected in the legislation, is that a Queenslander cannot now be admitted in Queensland to the occupation of conveyancer.

The Mutual Recognition Act 1992 (Cth) has mutuality of occupation as its essential requirement: its object is to permit the carrying on of equivalent occupations among the States and Territories of Australia. The fact is, however, that there is no occupation in Queensland that is the equivalent of Mr Sande's occupation of conveyancer in South
Australia. In my opinion, it would be a farcical consequence of the Mutual Recognition Act if the only persons entitled to carry on the occupation of conveyancer in Queensland were non-Queenslanders.
I certify that this and the preceding page are a true copy of the reasons for judgment herein of the Honourable Justice Spender.

Associate
Date: 13 February 1996

Counsel for the applicant : Mr S. J. English

instructed by : Mr R Keller

Counsel for the first
respondent : Mr P.D.T. Applegarth
instructed by : Crown Solicitor

Counsel for the second
respondent : Mr D.J.S. Jackson QC
instructed by : McCullough Robertson

Date of hearing : 8 November 1995

Date of judgment : 13 February 1996

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Citations

Sande v Registrar, Supreme Court of Queensland [1996] FCA 49

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[1996] FCA 49

13 Feb 1996