Street v Queensland Bar Association & Ors; Street v Queensland Bar Association & Ors; In the Matter of Robertson

[1989] HCATrans 51

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B32 of 1988

B e t w e e n -

ALEXANDER WHISTLER STREET

Plaintiff

and

QUEENSLAND BAR ASSOCIATION

First Defendant

QUEENSLAND BARRISTERS BOARD

Second Defendant

THE ATTORNEY-GENERAL IN AND FOR THE STATE OF QUEENSLAND

Third Defendant

Case stated

Office of the Registry

Brisbane No B45 of 1987

B e t w e e n -

ALEXANDER WHISTLER STREET

Applicant

Street(2)

and

QUEENSLAND BAR ASSOCIATION

First Respondent

QUEENSLAND BARRISTERS BOARD

Second Respondent

THE ATTORNEY-GENERAL IN AND FOR THE STATE OF QUEENSLAND

Third Defendant

Application for special leave

to appeal

ClTl/1/PLC 123 15/3/89

Office of the Registry

Sydney	No S58 of 1987
In the matter of -

The Rules relating to the

Admission of Barristers of

the Supreme Court of Queensland

And in the matter of -

TIMOTHY FRANK ROBERTSON

Case stated

MASON CJ

BRENNAN J

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 MARCH 1989, AT 10 .04 AM

(Continued from 14/3/89)

Copyright in the High Court of Australia

MASON CJ:	Yes, Mr Solicitor.
MR GRIFFITH:	Your Honours, may we go to paragraph 2 of our

contentions. It is our submission that the admission

rules discriminate between persons who have qualified

within Queensland, under rule lS(d)(l) and (2),
who may be admitted without restrictions as to

place of practice, and per~ons who have not qualified

ClTl/2/PLC	124	15/3/89
Street(2)

within Queensland but who have been admitted in

other States granting reciprocal admission under

rule 15(d)(4) and (5).

DAWSON J:  I am having difficulty in hearing you, Mr Solicitor.

MR GRIFFITH:  I am sorry, Your Honour. At this point,

Your Honour, I was reading the contention 2, the

first dot point, and we are making the submission

that the rules do discriminate. Your Honours,

there has been an affidavit of which we have been

given a copy, deposed yesterday by Carmel Hunter

which we suppose is to be filed on behalf of the

defendants. Has the Court a copy of that affidavit? As

this is my only opportunity to refer to it,

Your Honours, that affidavit indicates that the

course conducted in respect of - - -

MASON CJ:  We seem to be blissfully ignorant of it,

Mr Solicitor.

MR GRIFFITH:  Your Honours, I assume it is going to be relied

upon. This is my only chance to answer it,

Your Honours.

MASON CJ:  Yes. We need to have it in front of us otherwise

we will not be able to understand your answer.

MR GRIFFITH:  No. Your Honours, can I make two points and

then leave it for Mr Davies or other counsel appearing

for the defendant to produce facts out of their

briefcase if my points are wrong.

MASON CJ:	Yes.
MR GRIFFITH:	The points which we seek to make, Your Honour,

that so far as applications/admissions pursuant
to the process adumbrated by rule 15(d)(l) is

concerned, our understanding is that the persons
who have been admitted under paragraph (1), those

who have passed stages as required under the rules,

are in fact persons resident in Queensland and

who practise principally in Queensland. (Continued on page 126)

ClTl/3/SDL	125	15/3/89
Street(2)

MR GKIFFITH (continuing): The affidavit, Your Honour, does have

material indicating that there is eight external

students presently enrolled in respect of that

procedure but the point that we make, Your Honour,

is that our understanding is - and we stand to be

corrected if that is not the case - that all those

external students none the less are residents of

Queensland and we approach the case on that basis.

So far as admissions under paragraph i is

concerned, Your Honour, university degrees other

than within the State of Queensland with the

further requirement that the person shall pass

stage 6 within the meaning of rule J2, it remains

our understanding, Your Honour, that persons

admitted pursuant to that rule have in every case

been residents of Queensland and again, we suppose,

persons intending principally to practise in

Queensland. If the facts are any different, no

doubt we will be told, but that is our assumption.

We make the further submission in paragraph 2

of our contentions that within the class of persons

who have been admitted in other States granting

reciprocal admission there is discrimination between

those who will practise principally in Queensland

and those who will not. At this point we would

desire to comment on the decision in RE SWEENEY
and in particular the construction made of form 10
of the rules which is found on page 21 of the print

of the rules.

Mr Bennett has referred to the argument in

particular pursued by Justice W. Campbell in SWEENEY's

case in respect of the implication to be drawn from

paragraph(6)of that form. It is our submission that

when one refers to the form in its entirety,

including its historical context, and in particular to

paragraph (3) which follows after the depositions in

paragraph (1) and (2) deposing to admissions in other

courts, deposing to good standing in the other courts

in paragraph (2), and then in paragraph (J) stating:

That to the best of my knowledge and belief

I still remain a barrister of the said Court

that one then, in our submission, cannot draw the

inference from paragraph (6) as if it was standing alone, that there is an imperative obligation that

such a practice which is to be deposed to in paragraph (3)

on the basis that the deponent remains a barrister in the court is to cease for the purposes of admission

under the Queensland rules.

ClTl/1/BR	126	15/3/89
Street(2)

MR GRIFFITH (continuing):  In our submission, the

purpose of these paragraphs are to enable a form
to be adapted so as to disclose fairly to the

Court the applicant's position in respect of

other admissions, where the applicant has been

admitted that the applicant remains in good standing

and remains in practice in those jurisdictions;

in cases where the applicant has ceased to practise

setting forth details as to that ceasing of

practise and employment in the meanwhile; and,

of course, the other implication made by the Court

in the SWEENEY decision was that there was a

further requirement of residents in Queensland.

In our submission, that can only be drawn from

the jurat where it is provided, "I, A.B. of

in the State of Queenslan~'. In our submission,

that is an insufficient basis to draw any conclusion

of requirements for residence. So, it is our - - -

BRENNAN J: 

What do you say about the amending rule?

MR GRIFFITH: 

The amending rule before the Court?

BRENNAN J: 

Yes.

MR GRIFFITH: 

Your Honour, our submission as to that is that

that substitutes the requirements for a principal
practice which, as a matter of practical reality,

Your Honour, does require residence. We say in

a practical sense it is the same thing, Your Honour,

and we were going to go on to submit, and I shall,

Your Honour, that when one has regard to the history

of the rules and the circumstance of the

amendment, the amendment should be regarded as

explicable on the basis that it was attempting to

bring the case fairly within the HENRY V BOEHM

principle with reference to any argument based on

section 117. In our submission, Your Honour,

there is no basis to draw any inference that the

substantive requirement of residence was intended

to be abandoned by this provision, and we would make

the comment, Your Honour, that it is a matter of

obvious fact that until 1 July 1988 no person who

was not resident in Queensland and who intended

substantially to practise there was admitted,

Your Honour, and with the further requirement,
of course, that they had to cease practice in other

areas where they did practise.

Since 1988, Your Honour, we would say that the

position, in essence, has been the same, that no

person admitted on qualifications other than in

Queensland and who has been previously admitted in

other jurisdiction, has been admitted to practice

in Queensland, Your Honour, and the term requiring

substantial practice in Queensland in essence,

ClT3/l/HS	127	15/3/89
Street(2)

Your Honour, requires residence in Queensland,

although we do not regard that as an essential
part of our submission as to discrimination;
but we submit, Your Honour, the basic thrust

of the provisions is to ensure that the rule was

discriminatory against persons who have been

qualified and admitted in other jurisdictions,

namely that they must cease practice in that

other jurisdiction and agreed to practise

principally in Queensland and, in fact, do so

to secure unqualified or even conditional

admission.

(Continued on page 129)

ClT3/2/HS	128	15/3/89
Street(2)

MR GRIFFITH (continuing):  We referred yesterday briefly

to the history of these provisions. If I could
take the Court firstly to tab 3, RE OWEN, where

one sees this intention established. It is

a very short report. Owen appeared in 1865

for admission and in that case he was invited

to address the Court personally and there was

an interesting interchange between him and the

Court as to the difference between the English

qualification and the Queensland qualification

and the Chief Justice indicated that Owen could

not be admitted on the following page, 140,

of the report for a single case.	And
Justice Lutwyche said:

I concur with the judgment of the

Chief Justice. An affidavit of residence or intention to practise is necessasry to

ground an application for admission to the

bar of this colony.

And it would seem, Your Honour, that the aspect

as to intention to practise was later covered

by amendment to the rules so that, in fact,

it became an affidavit of residence which was

required.

The next case was that of RE DALLEY, which

is a short report on tab 4. That dealt with

an applicant who had already been admitted to

the Supreme Court of New South Wales before

separation and one sees - it was a rather

embarrassing case for Mr Lilley because he, in fact, was the plaintiff in the action to which Dalley wished to be admitted for a single

appearance. He was in court and he was invited

by the court to express his opinion, he said,

with some delicacy, but, at page 163 he says:

But some alterations have been made since, and one of the rules is that a gentleman

on applying for admission, or for leave

to sign the roll, shall swear that he is

about to reside and practise in the colony.

And Chief Justice Cockle said he:

called upon Mr Lilley merely as amicus curiae.

It should be distinctly understood that

this case will not extend to any barrister

of New South Wales admitted since Separation.

And the history summarized in SWEENEY would

seem to indicate that that was the case, those

already admitted at separation retained the right

as a closed class and, of course, now they have

all died out.

C 1T4/l /ND 129 15/3/89

Street(2)

MR GRIFFITH (continuing):  There is another example which

is referred to by Justice W. Campbell in OWEN

on this issue of dying out, and that one may

pick up in the report of RE SWEENEY, (1976) Qd R 296

in the judgment of Campbell J at 306 and 307.

We refer to this as confirming what we see as

a protectionist purpose of these provisions because

there was a single case of a Queenslander who went

to Victoria for his legal education and he would

have been barred from admission under the rules.

In 1893 there was a particular rule passed to provide an avenue of admission for people in

the position of the applicant who was already

a student before the new rule was introduced.

At page 307 of the report of SWEENEY Justice Campbell

somewhat laconically notes that this special

provision enabling 19th century students at

the University of Victoria to be admitted was,

until 1975:

generously keeping open until last year an

avenue for admission to the Queensland bar

for the use of those persons who were

students-at-law in Victoria before

November 23, 1891.

Your Honours, we referred yesterday also to the

history of the Bar. I gave the Court the full

chapter of Johnson's History of the Queensland Bar.

The particular parts to which we desire to refer

is the summary as to the elements of reciprocity

of admission which are on pages 14 to 20. That is,

really, the only parts of the· chapter which we

particularly see as useful in the courts considering

the history of these provisions. From page 14

onwards - I will not take the Court to the detail

of it - there is a direct acknowledgement, on page 16,

of the requirement for residence. He refers to

the case of OWEN and refers to the fact that:

It was held that an affidavit of residence or

intention to practise inthecolony was

necessary. Barrister Pring opposed Owen's

admission on the ground that such an admission

was unfair to the Queensland Bar.

(Continued on page 131)

ClT5/l/MB	130
Street(2)
MR GRIFFITH (continuing):	In fact, when one goes to the

report, one sees that barrister Pring, who I

think was the first barrister admitted in

Brisbane, made the point that such an admission

would be contrary to precedent. Well, at that

stage there was none and also says that it was

unfair to the English Bar. The author summarizes

the legislation of 1956 and its repeal in 1960
over the next four or five pages to page 20.

In the footnote 1 on page 19, he lists those counsel who were admitted under the statutory

exception which, of course, did not alter the

rules for admission but merely gave another basis

for admission why it existed.	He makes the note
in the middle of page 19 that:

The Bar Association claimed that the time
was not at hand for the emergence of an

Australian Bar, as the 1956 legislation

seemed to envisage, nor was it wise that

the Queensland Bar be fully stripped of

its protection, a fact which it was

claimed was recognised by southern

barristers.

He makes a similar summary of the position as at

1960 on page 20, where he says:

Furthermore, even by the 1960's, it was

doubtful that the time had arrived for

an Australia-wide Bar -

and then he notes:

When Queen's Counsel in Brisbane had come

to specialize, the time would seem more

propitious for a free interchange

between barristers of the Victorian, New

South Wales and Queensland Supreme Courts.

We refer to that as confirming the protectionist

nature of the provision, inasmuch as there is

expressed there a justification for protection, our

submission is that the obvious strengths of the

Queensland Bar gives lie to any justification based

on the requirements to protect the local profession
in their practice outside or inside Queensland in

non-federal matters or, indeed, that denial of any

need of protectionist, is as we have indicated
yesterday, being confirmed by the cross-vesting

legislation which as from 1 July 1988 enables

practitioners to practise in matters within the State

jurisdiction, not just the federal jurisdiction
within Queensland in matters of non-federal
jurisdiction remitted to Queensland under the cross-

vesting legislation.

ClT6/l/JH	131	15/3/89
Street(2)

MR GRIFFITH (continuing):  Our submission, then, is at the end

of the day the practical operation of these they cease other practice and become resident in
provisions is that barristers admitted outside

Queensland and, post-1988, unless they cease their principal practice and, we say, as a matter of obvious factual consequence which can be expected

to inure, if the rules stay as they are, no

barrister admitted other than Queensland, will be
admitted to practice on terms other than he
practically ceases to practise elsewhere and adopts, as

his principal place of practice and, we would say,

in substance, his residence, the State of Queensland.

Our submission is that the provisions of the

rules in this way are discriminatory in preventing

the admission to practice as a barrister in Queensland,

an Australian practitioner admitted elsewhere, who is

qualified outside of Queensland and desires to

continue principally practising in other than

Queensland. In other words, we read these provisions

as a prohibition, not a restriction. It is a case

of a non-fiscal measure and it becomes, of course,

a question of fact to determine if the measures

constitute discriminatory interference with interstate

trade.

As to the establishment of fact, of course, this

is a case stated, but we would submit that

Your Honour Justice Brennan's remarks as to the

obligation on the Court in a constitutional case

to inform itself as best as may be, made in

GERHARDY V BROWN, in particular 159 CLR 141 to 142,

indicate the approach of the Court which, of course,

Your Honour referred to the judgments of

Chief Justice Dixon in BREEN V SNEDDON and

COMMONWEALTH FREIGHTERS V SNEDDON on page 142 of that

report and approved of His Honour's statement that:

"If a criterion of constitutional validity

consists in matter of facts, the fact

must be ascertained by the court as best

it can, when the court is called upon to
pronounce upon validity."

Now, the answer, of course, may, as was indicated in COLE V WHITFIELD, depend on judicial impression but,

in our submission, the Court firstly has the advantage

of the nature of the law impugned. It has the case here,

a law where the discrimination appears on the face of

the law and we have made the submission that we submit

the rules are no less discriminatory in result and effect in an Australian reading of the forms of thE old rules.

ClT7/l/VH	132	15/3/89
Street(2)

MR GRIFFITH (continuing):  I think we have sufficiently

indicated to the Court that, in our submission,
the decision of RE SWEENEY was plainly wrong,

both on the construction of the rules and on the

issue of section 117. But, in our submission,

none the less, it is clear that the old rules

were regarded as operating as having this

discriminatory effect of prohibiting practice
of persons admitted elsewhere and desiring to

continue to practise elsewhere.

We have referred to the legislative history

and to complete that may we refer to the Hansard,

tabs 6 and 7, which have already been referred

to in passing by my learned friend, Mr Bennett,
as to the parliamentary debates. We refer to
this merely on the aspect of the mischief and

the legislative history but if I could take the

Court briefly to page 416, under tab 7, which

is about the third last page of the materials.
This is the minister, Mr Munro, who in fact, on

the introductions bill in 1956, spoke in opposition

of the 1956 bill but, on page 416 of Hansard,

right-hand column, point 8 to 9 of the page, the

minister says.

It is true, of course, that after the

Act is repealed the general practice will

be that barristers from southern States will

not be permitted to practise in Queensland
unless they come to reside in Queensland

or unless there are special circumstances.

And we know from the history which is summarized

by Justice W. Campbell's judgment, that the special

circumstances are very rare indeed; there would

only be two or three examples of them and a clear

indication that they are to be discouraged.

In the result, therefore, in Queensland, a condition for

admission is reciprocity with a further requirement

of ceasing to practise in the reciprocating

jurisdiction whilst, of course, accepting that

there was no corresponding limitation in other

jurisdictions for Queensland practitioners admitted

there. We would submit that the Court is entitled

to have regard to the notorious fact that other

jurisdictions within Australia are able to provide

a reasonable mechanism to enable the administration of the profession in the context that practitioners admitted elsewhere and continuing substantially
or almost wholly to practise elsewhere are enabled

to be admitted generally to practise in those

other jurisdictions. And we would submit that

the State of practice throughout Australia, having
regard to the increasing maturity of Bars; the

movement of practitioners; the movement of

C1T8/1/SDL 133 15/3/89

Street(2) (Continued on page 133A)

litigation between courts, confirmed by the

cross-vesting legislation and the increase of
operation of federal jurisdiction vested in State

courts, all goes to confirm that it is possible

and convenient to raise the mechanism providing

for reciprocating admissions which are not qualified

by exclusionary requirements of ceasing to practise

or residence.

We submit that when one looks at this history

it confirms that the purpose of the old rules,

and we say the present rules, is protectionist.

The requirement to cease practising,in our submission, cannot be justified as relevant to levels of training,

professional ability, or the desire to preserve
standards in the Queensland Bar. Queensland educated

and admitted practitioners can practise principally

elsewhere from their first date of admission;

there is no requirement that they principally

practise in Queensland for a day, let alone for

a year.

DAWSON J: It is curious, Mr Solicitor, that you could achieve

the same end quite easily without incurring these

attacks by, for instance, simply saying that no

one will be admitted to practise in Queensland

who has not qualified at a Queensland university.

MR GRIFFITH:  Your Honour, we do have an answer to that.

In our submission, Your Honour, such a provision

could be liable for attack under section 92 because
if, as a matter of fact on evidence, it was demonstrated

to be provided for a protectionist purpose we

would submit to Your Honour it, too, could contravene.

section 92. It would become a matter of evidence

as to whether that was for the intention of ensuring

the standards of the profession or whether it

was for some other purpose.

(Continued on page 134)

ClT8/2/SDL	133A	15/3/89
Street(2)

MR GRIFFITH (continuing): Given the legislative history,

Your Honour, we would submit that there would be a

very strong case if now such a rule were introduced

given the history of acquiescence in foreign

qualifications since the inception of the rules

but on the basis of the extra requirement of residence

and ceasing to practise elsewhere, so it would be

another case of colouring, Your Honour, what would

be the intention. But at the end of the day our

answer to that would be, Your Honour, such rules
could be demonstrated as a matter of theory, in

our submission, to be contrary to section 92. In

that case, Your Honour, we would submit that absent

any rule providing for admission on the basis of
foreign qualification, there would be an adherent

jurisdiction in the Supreme Court of Queensland to

permit such admissions notwithstanding the rules.

So we do not see that as the short answer for

the section 92 point. It may be the short answer

for the section 117 point, Your Honour, but as we

have indicated, our primary and principal submissions

remain on section 92.

BRENNAN J:  Mr Solicitor, do I take it from what you have just

said to Justice Dawson that in order to determine

whether a law fails under section 92 as being a law

which imposes a discrimination of a protectionist

kind, one looks to the purpose of that law and if so,

what is the material by reference to which one divines

the purpose?

MR GRIFFITH:  Your Honour, we say firstly it is a question of

fact. That is stated in COLE V "WHITFIELD at page 67.

We say, Your Honour, the answer may depend on

judicial impression. That is stated in COLE V WHITFIELD

at page 66.	We say, Your Honour, that the Court has
to inform itself as best it may be.	I have referred

the Court to a summary of that provision. Having

said that, Your Honour, obviously one goes first to

the legislation. Your Honour, if that establishes

American authorities have that if it is quite clear,	appropriate to adopt a similar approach that the a discrimination which is clear, we say that it is	that is the end of the matter. If it is not clear,
Your Honour, that there is this protectionist intention
then one may have to examine the sort of issues which one sees from the American case, as my learned friend,
Mr Bennett, took the Court to, as to whether
justifications are sufficient to make what might be
regarded as discriminatory something not to be
characterized as discriminatory.

I do not want to get involved in issues of onus

there, Your Honour, but these elements may be put in

justification. Your Honour, one might say, "Well,

looking at all of that, it is not discriminatory", but

ClT9/1/BR	134	15/3/89
Street (2)

that is really part of the process of factual

examination. In our submission, Your Honour, a very

strong influence may be exercised by the course of

history and here, of course, Your Honour, one has,

we would submit, a strong demonstration there of

the course of history in relation to these provisions.

It may be able to make some submissions in respect

of these provisions standing alone having regard

to their history and the alteration of the provisions

on the eve of the special leave application. We

would submit, Your Honour, such justifications are

not so readily made.

BRENNAN J: Let us assume, to take Justice Dawson's example,

that there was a requirement that an out-of-State

barrister should pass an examination at the Queensland

University in the Queensland CRIMINAL CODE. Now, that

would obviously be discriminatory.

MR GRIFFITH: 

Your Honour, it may be perfectly reasonable for

the regulation of the local profession and that
becomes the issue as to whether it is there for a
discriminatory protectionist purpose or is it there
for the proper regulation of admission and equality
of practice in the court which obviously, Your Honour,

is a matter which high regard may be had.

BRENNAN J: And if it is both?

MR GRIFFITH:  Your Honour, this is a difficult task for

the Court and the Court adumbrate this in COLE V

WHITFlELD that there may become a balancing process.

At the end, Your Honour, it will not be a matter for the parties to litigate and confine the issue, it is

for the Court, Your Honour, doing the best it can,

we would submit, having regard to all these factors
including the paramount factor of the interests of

the administration of justice in Queensland, which

must be a paramount fact, and doing the best it

can, Your Honour, conclude whether or not there is

a discrimination which is protectionist such as

to infringe section 92. (Continued on page 136)

ClT9/'l./BR	13.J	15/3/89
Street(2)

MR GRIFFITH (continuing): And it may become a fine line

in some cases. A provision such of that sort,

Your Honour, one would suppose on the face of

things would be all right. Indeed, there was

an identical requirement placed on me when I

applied for admission in Lincoln's Inn in England.

Notwithstanding the rule provided I could be admitted as of course, I was required to sit

property law, criminal law and procedure and,

Your Honour, it would be a matter of arguement

as to whether that was intended to discourage

me or whether it was an appropriate requirement
for the English Bar.

The example you give, Your Honour , would seem to be one which one would tend to think

would be clearly all right as long as there
was not material to indicate that it was included

merely for a protectionist purpose. But it

would be a matter of degree, Your Honours.

But one could have regard to the fact that in

other State jurisdictions within Australia where

there would be a similar problem, Your Honours,

mechanisms have been devised without requiring

onerous examination qualifications as additional

requirement for practitioners admitted elsewhere.

But we do say, in this case, that the

legislative history does have a significant

colouring effect and, really, drawing it together,

at the end of the day, perhaps it is sufficient
to refer to what we would say is notorious fact.

Except for a four year period, 1956 to 1960,

when 16 practitioners were admitted, and we

know their names, only Queensland practitioners

have had the right to practise throughout all

jurisdictions in Australia. No practitioner

practising principally in other jurisdictions

and desiring to continue that practice can be

admitted to practice in Queensland; to 1987,

it was for the reason that they were required

to be resident and to give up other practice.

We say, now, unless principally practises in

Queensland for one year.

So that it means that unless a foreign

qualified person is resident and gives up other

principal practice , as a matter of reality,

they will not be admitted to Queensland and

we say that is confirmed by the fact that no

person who does not qualify in that way has
been admitted, really, ever with the exceptions
of the 1956 to 1960 period and with the one

or two exceptions of Dr Evatt and Holmes which

are very limited in their nature.

C lTl 0/1 /ND	136	15/3/89
Street(2)

Could we turn then to our proposition 4

which is that the practice of a barrister and solicitor is in trade and commerce. We refer

in our contentions to several cases which are
not on our list of authorities. If I could
hand to the Court a bundle of those cases.

I do not intend to take the Court to them in

any detail.

MASON CJ:	Thank you.
MR GRIFFITH:	We would submit that the view that perhaps

is reflected in Sir Owen Dixon's writings in

Jesting Pilate, which is not on our list of

authorities but is a well-known essay on the

profession of accountancy, at page 192 of

Jesting Pilate where His Honour took what could

be put as a 19th century view as to the nature

of learned professions. It is not one, in our
submission, that should be reflected in the

understanding of the expression "trade and commerce"

so far as the application of section 92 is concerned.

We submit that the profession of barrister

is a service profession and in its ordinary

meaning is trade and commerce. My learned friend,

Mr Bennett, has taken the Court to the GOLDFARB

decision, the first case of GOLDFARB V VIRGINIA

STATE BAR, (1975) 421 US 773, at page 786 to

788, and I think my learned friend sufficiently

referred the Court to those parts of the opinion

of the Court and we would accept their conclusion

on page 788:

In the modern world it cannot be denied that the activities of lawyers play an important part in commercial intercourse,

and that anticompetitive activities by lawyers

may exert a restraint on commerce.

(Continuing on page 138)

ClTl0/2/ND	137	15/3/89
Street(2)

MR GRIFFITH (continuing):  We submit that this approach 1s

consistent with what Justice Dixon said in the

BANK OF NEW SOUTH WALES V THE COMMONWEALTH, in

particular at 76 CLR 381 to page 382, although, of

course, it may well be doubted that Justice Dixon

would have regarded barristers as falling within

trade and commerce having regard to his other writings,

but at page 382 in volume 76 CLR - and I refer to

discussions starting on the previous page -

His Honour made the point that:

The words "trade, commerce and intercourse"

are not naturally susceptible of such a

reactionary interpretation. The very manner

in which they are combined would carry, even

to a mind unfamiliar with their background, an
intention to include all forms and variety of

inter-State transaction whether by way of

commercial dealing or of personal converse or

passage.

We submit, as a general statement that would embrace
the practice of barristers appearing and practising
in more than one State. There is a similar reminder
of the open texture of trade and commerce in the
judgment of Justice Deane on the Federal Court in

the KU-RING-CAI CO-OPERATIVE BUILDING SOCIETY case.

That is included in the materials which we handed

to the Court and I think on this aspect Justice Brennan a 1 so concurred with what Just ice Deane said at page 167

of that report, 36 FLR.	At the top of page 167
Your Honour said:

The terms "trade and "commerce" are not terms

of art.	They are expressions of fact and
terms of common knowledge.	While the particular

instances that may fall within them will depend

upon the varying phrases of development of

trade, commerce and commercial communication,

the terms are clearly of the widest import -

and one can see that reflected further in the

judgment of Justice French which is the next case in

our materials, BOND CORPORATION PTY LIMITED V THEISS,

71 ALR 615, where at page 619 to 620 Justice French

discusses the issue of whether section 52 of the

TRADE PRACTISES ACT was applicable to professional

advice by a consulting engineer and at page 619 he

makes the point, under the heading "The concept

of the profession":

The scope of "trade or commerce can be

considered against the concept of "profession"
to determine whether there is anything about

the latter that excludes it from the former.

The word "profession" is descriptive of a

class of occupations. The membership of that

ClTll/1/HS	138	1 S/3/89
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class is not rigid or static but shifts with

general community perceptions. Whether a

person carries on a profession in a given

case is a question of degree and always of

fact.

So that although Justice Griffith could express, as

we saw yesterday, the view that barristers were an

elite class requiring classical general education

and the capacity to linger three years unemployed before admission, we would submit that times have

changed, that at this stage one must regard the

profession of barrister - - -

GAURDRON J:  Mr Solicitor, does it follow that if the TRADE

PRACTISES ACT were applicable to a State, Queensland

would be in breach of it?

(Continued on page 140)

ClTll/2/HS	139	15/3/89
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MR GRIFFITH:	Well, Your Honour, that is perhaps a matter for another day.
GAUDRON J:	Well, perhaps not if you put this open-textured nature of the nature of trade and commerce?
MR GRIFFITH:	Your Honour, one has seen from my learned friend,

Mr Bennett's submissions, have emphasized the

elements of intercourse for the purpose of operatiou

of section 92. Now, it seems to us, Your Honour,

that one cannot skate around the issue, one must

go straight at it and answer the question, "Is this

trade or commerce?" Now, the inquiry here is for
the purpose of section 92 and, Your Honour, we submit,
that that is the only relevant inquiry before the

Court. If there are possible arguments that then could arise as to the aspects of operation of the

TRADE PRACTICES ACT, Your Honour, with the definitions

provided in that Act by reference to other heads

of constitutional power, certainly not by reference

to section 92,	that is a matter for another day. If there
is	an element of possibility of further elucidation,

Your Honour, well, that will have to be faced as it

happens, but this case, Your Honour, we submit,

does turn up the issue of whether for the purpose

of section 92 the expression "trade or commerce"

it is possible to regard professional practice as

a barrister as being the engaging of trade and commerce

for that provisions.

McHUGH J:  Mr Solicitor, you are not looking at it

in the abstract, but does the individual right theory

still apply to section 92 and if it does is it not

necessary to look at the individual who is concerned,

who is seeking to make application, Supposing,

for instance, that one or other of these applicants

wanted to be admitted simply to practise in criminal

cases in Queensland, would they be engaged in

commerce between the States?

MR GRIFFITH:  Your Honour, we submit that this whole element

of engaging commerce between the States itself

needs re-examination after COLE V WHITFIELD, and

our contentions go on to make submissions about

that. But what we submit, Your Honour, is that

if there is a prohibition on people outside the
State from engaging in commercial activity in the

State that is sufficient to contravene section 92

and, we say, it is not necessary to look for a

particular brief or a particular loading fee to cover

the extra cost of coming in from over State.

McHUGH J:  Well, what about the nature of the particular

barrister's practice?

MR GRIFFITH:	Your Honour, we are talking about a particular rule here and what we say, Your Honour, is the rule
itself contravenes section 92,to put it at its
ClT12/l/MB	140
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highest, because it prohibits, in effect, practise

by practitioners not primarily admitted in

Queensland who are admitted elsewhere.

McHUGH J:  That is why I am asking you about the individual

right theory. I mean, the BANK NATIONALIZATION

case, really, brought the individual right theory,

or confirmed the individual right theory of

section 92. Does that still apply?

MR GRIFFITH:  Your Honour, it may be a matter for elucidation of either court. We say, Your Honour, that the

question is one of capacity to carry on the business,

the profession of barrister. We certainly do not

say that the barrister has to appear in commercial

cases, we say that is irrelevant.

DAWSON J:  What, the barrister practising in the Fdmily Court

exclusively is engaged	in trade and commerce
or in the criminal courts?

MR GRIFFITH: Well, Your Honour, what we say is section 92

does affect the capacity of a State to prohibit

people from outside the State engaging in activity

in the State, in commercial activity.

DAWSON J:  No, but I asked the question: do you say that

a barrister who practises exclusively in the

Family Court is engaged in trade and commerce?

MR GRIFFITH:	Yes, Your Honour.
DAWSON J:	Or in the criminal courts?
MR GRIFFITH:	His profession is a barrister, Your Honour,

is trade and connnerce.

DAWSON J:  I can understand that a barrister engaged in

practice in commercial law is engaged in something

which is incidental to trade and connnerce?

MR GRIFFITH:  Your Honour, we approach it more directly and

say barristers carrying on their profession are

engaged in trade and commerce.

DAWSON J:	Why?
MR GRIFFITH:	Your Honour, for the same reasons that Justice French took the view that an engineer was
engaging in it.
DAWSON J:	What is there of trade and connnerce in the family

law?

ClT12/2/MB	141
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MR GRIFFITH:  Trade and commerce, in our_

submission, Your Honour, includes dealing with

intangibles; one does not have to have milk, or

articles, or cheques, or money.

DEANE J:  Is not what you say that they sell their

services?

MR GRIFFITH:	Yes, thank you, Your Honour, yes, indeed.
DEANE J:	And, it is not to the point as to the place in

which they perform the services they sell; the

trade and commerce is the selling of their

services.

MR GRIFFITH:	Yes, and I think the point I was - - -
DAWSON J:	So that any services, whatever their nature, if

they are sold, involves engagement in trade and

commerce?

MR GRIFFITH:  Your Honour, that is a complete, unqualified

statement.

DAWSON J:	Well, I was thinking of a music teacher, for instance; it is very hard to see that he is
engaged in trade and commerce, is it not?
MR GRIFFITH:	Well, Your Honour, if there was a provision of

State law which said that music teachers who have not qualified in Queensland cannot come to

Queensland and give music lessons, we would contend,

Your Honour, that that music teacher could say that

section 92 was infringed so far as that prohibition

was concerned.

DAWSON J:  Because it was trade and commerce, not

intercourse?

MR GRIFFITH:  Yes, because it was trade and commerce, yes.

We say - - -

McHUGH J:  Is that the way it has been approached in the

United States? I thought in the passage we were

referred to in GOLDFARB, what was relied on was

the inseparability between the legal services

from real estate services.

MR GRIFFITH: 

Your Honour, I was going to the Court to

the LEWIS V BT INVESTMENT MANAGERS case, which
perhaps is helpful on that in indicating that if

there are restrictions so that the locally- owned

businesses have, in effect, a monopoly of that

sort of work, so that an out-of-State owned

company cannot come in and do it, would seem to

the view for the trade and commerce provision,

so far as the LEWIS decision confirmed it, Your Honour,

that that would contravene the provision, so the

answer really is, yes. But, I think I - - -

C1Tl3/l/JH	142	15/3/89
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DAWSON J:  I was going to ask, what is it that makes the

provision of services, trade and corrnnerce, the

receipt of a fee? Or is the voluntary provision

of services, trade and corrnnerce also?

MR GRIFFITH:  Well, Your Honour, one gets to the nice.point.

It might be a nice point if one was altruistically

engaged in practice for the good of the corrnnunity

for no reward, whether that could be regarded as

trade and corrnnerce. But, in essence, Your Honour,

we say in the ordinary meaning, a barrister carries

on business selling his services for reward. He

has various obligations, Your Honour, to the court;

expressed ai ari officer to the court, prof~ssiorial -

DAWSON J:  But you have to test it. Are you engaged in trade

and commerce, Mr Solicitor?

MR GRIFFITH:  Am I engaged in trade and corrnnerce? Well,

I suppose that is another issue whether a

government lawyer, who is not paid a fee depending

upon the - - -

DAWSON J:  Well, that is what I am asking you. Is it the

payment of the fee which is the criteria?

MR GRIFFITH:  Your Honour, we would submit that I am engaged

in trade and commerce in that if there is a provision of the Queensland law which says,

"Solicitor-Generals of the Commonwealth could not

appear in Queensland'; we would submit, Your Honour,

that would contravene section 92 because - - -

McHUGH J; You will be able to join the commercial lawyers

association.

MR GRIFFITH: Yes, well, Your Honour, I joined the other Bar

Association without any inhibition; it is just

that the problem about my practice is the fees, but

apart from that it has all the aspects of practice.

We would go that far, Your Honour, to say that

barristers are engaged in business, that is really
what it boils down to.	They have got obligations

to the court, they have got professional

obligations, but notwithstanding all that, by and

large, they are on hire, selling their services for

reward. Sometimes they appear for nothing,

sometimes they appear for fees, Your Honour, but in

all cases, we submit, Your Honour, they are carrying

on trade and corrnnerce; and that they are doing that

even if they, for example, went into Queensland

on a fee-to-client basis. Your Honour, I was about

to say that Justice French would seem to support

this is the modern view of analysis of professions
notwithstanding that they may bemerilbers·of professional
associations with the prefix royale or any other

appellation of social approbation.

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MR GRIFFITH (continuing):  We submit that the approach of

Justice French is an apt one. You have to look at -

you say the membership of what is a profession and whether it includes trade and commerce can depend upon community perceptions and then

Justice French engages in a short examination

of the literature which we see as relevant and,

at the bottom of page 619, he says:

That question may never be satisfactorily

resolved for all purposes. However, where

the conduct of a profession involves the

provision of services for reward, then

in ffiY opinion, even allowing for widely

differing approaches to definition, there

is no conceivable attribute of that aspect

of professional activity which will take
it outside the class of conduct,falling within

within the description "trade or commerce."

And that is hy reference to the TRADE PRACTICES ACT.

We submit that that approach is. really reflective of the approach that one sees of lawyers in the

GOLDFARB decision to which we have already referred

and, also, we would submit that the fact that it is

expressed that a barrister also has a function as

the officer of a court does not, in itself, take the

characterization outside the characterization that

none the less such person selling his services or her

services, is engaged in trade and commerce.

BRENNAN J:  Do I take it that interstate practice as a barrister

attracts the operation of Sl(i) as well as 92?

MR GRIFFITH:  It could well, Your Honour, but that is a different

question.	We are taking about trade and commerce
for the purpose of section 92.	Now, the argument

we make here, Your Honour, may be an argument as

validly and effectively made in respect of that but

that is not the issue before the Court.	We intend
our submission to deal with the matter before the

Court. But, we say the meaning of trade and commerce

in section 92 is not frozen as at 1900. It is something

which has a mobility of meaning as indicated by

Justice French.and we say that the American decisions

in saying, as in PIPER, a~ 283, in the opinion of

Justice Powell that:

A lawyer is an "'officer of the Court'"

does not alter the classification and, for GOLDFARB
to say, well, in effect, lawyers are engaged in

trade and commerce and selling their services is to

reflect what is the correct characterization from the

point of view of answering the question whether or

ClT14/l/VH	144	15/3/89
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not a barrister is engaged in trade and commerce.

Now, that may have consequences, Your Honour, but

that is for another day. The consequence here, in

our submission, is that section 92 may be regarded

as being relevant.

If we could go, then, to our fifth contention,

and this we have already touched upon but, in our

submission, once it is accepted that the_practice of a barrister

is in trade and commerce, we submit there is no
difference in principle between a barrister who

crosses the border from New South Wales to perform

professional services in Queensland and a costermonger

who wheels a barrowload of apples across the border

to sell them there. Perhaps we could use my learned

friend, the Solicitor-General for Victoria's example:

if you look into a barrow and, instead of seeing

old clothes or old apples, you see old briefs,

in our submission, you say that is trade and corrmerce; that

is enough. Perhaps he only has to have one - - -

DAWSON J:	I still do not understand why you say it is trade
and commerce.
MR GRIFFITH:	Your Honour, because we say the barrister himself is engaged in

the trade and commerce of selling his services tor

reward. One does not have to look to the brief that

he has to say whether or not it relates to a

commercial matter, a family law matter, a criminal

law matter. What he is doing is selling his services

as a merchant banker is selling services and we

submit in both cases, Your Honour, the selling of
ideas, the selling of your time by the hour or by

the result or by the case, in all cases is an

engaging in commerce by the person who engages in it

and we say that is sufficient to be trade and commerce.

DAWSON J:	So that, as long you are selling something, you are
engaged in trade and commerce.

(Continued on page 146)

ClT14/2/VH	145	15/3/89
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MR GRIFFITH:  That might not be the only definition,

Your Honour, but if you are engaged in a business

of selling your services, we submit, Your Honour,

you are engaged in trade and commerce. But	one
does not have to sell things;	one can sell

intangibles, one can sell, in effect, one's mind. You are giving services, you are making your mind available for reward - that is what a barrister

does.

McHUGH J: It is a developing concept. I mean, a previous generation thought that the carriers themselves

were not engaged in trade and commerce - that

was a view that was held in the thirties.

MR GRIFFITH:  Yes, I am grateful for Your Honour's observation

on that. Perhaps it is a little bit demeaning

compared with the altruistic expressions of, for

example, Sir Samuel Griffith, but this is the

reality, at the moment, that barristers are controlled

in the services they can give, the fees that they

can charge in many jurisdictions and we submit

that when one has regard to their function they

fall within the generality of professional persons

selling their services for reward and we submit

that that is within the concept of trade and commerce

in its ordinary meaning.

If someone says to a barrister, "What business are you in?", you say, "I am a barrister." If

the question was - - -

BRENNAN J:  The problem about that argument is that it attacks

not the rules relating to the admission of barristers
but section 38A, was it not, which denies people

who are unqualifed the right to recover a fee?

And, how does one apply this? You speak of barristers

but, of course, the person of whom you are speaking

is, in the eye of Queensland law, not a barrister?

MR GRIFFITH: Your Honour, can I start _ say, to apply	section 92 one must say it is trade and commerce -	that is the first inquiry. Now, having said that,
one must ask, "Well, if a barrister is engaged
in trade and commerce, is there any application
of section 92 in respect of these provisions?"

BRENNAN J: When you say that, though, are you speaking

of a barrister of the supreme court of a State

other than Queensland?

MR GRIFFITH:	Yes.
BRENNAN J:	And is he engaged in trade and commerce among

the States?

ClTlS/1/SDL	146	15/3/89
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MR GRIFFITH:  Your Honour, we would submit he is sufficiently

engaged if he wants to practise and appear in

Victoria, South Australia or Queensland, even

if he has not yet done it. We say, Your Honour, if there

is a prohibition on him doing ir, that is

quite sufficient to launch an attack for

section 92 purposes.

BRENNAN J: Well, there is a prohibition in every State

against his doing it, is there not?

MR GRIFFITH:  Your Honour, that is the next inquiry, in

that of course there can be a prohibition on admission

except those who are lawfully admitted. That

is of the essence of the nature of a court regulating

its procedures, and it is of the essence of the

proper administration of justice that that should

be so; that is not attacked, Your Honour.

What is attacked is a protectionary discriminatory

provision, Your Honour, which has the effect,

we say, of prohibiting a person qualified and

practising outside the State from being admitted.

Your Honour, it must be conceded that there

can be a ban without admission of the sort that

is here; I have already made the point in answer

to Justice Dawson that if there were a provision

limited to only locally educated people being

admitted, that still might be under attack - it

would depend on the facts. But here, Your Honour,

there is no such situation; the rules from their

inception have recognized foreign admissions -

they had to because there was no way of qualifying
in Queensland until, as the history indicates,
some scores of years into the history of the law

in Queensland.

DAWSON J:  But it does follow from what you are saying,

Mr Solicitor, that the Commonwealth could pass

a valid law providing that a barrister admitted

entitled to practise in the courts of any other	to practice in the courts of one State shall be
State.

MR GRIFFITH:	Your Honour, it has done that in the case of me. Its validity has not been tested but I
have a statutory right -

DAWSON J: That is the conclusion, the logical conclusion,

from what you have said.

MR GRIFFITH:  Your Honour, we would submit we are dealing

here with section 92 - the meaning of it.

Your Honour has asked me questions about Commonwealth power under section 51 - if the same meaning applies.

We would submit, Your Honour, that is another

question; COLE V WHITFIELD examines the

relationship between section 51 and section 92. It

is obviously something that will have to be elucidated

in further cases.

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MR GRIFFITH (continuing): It does not follow as night

follows day, Your Honours, but it is a possibility

that if trade and commerce has a wider meaning

and would include things such as what were

previously regarded as the area of the learned

professions, if that meaning is applied in

section 51, which is another question, Your Honours,

then it may be that there would be a further

content to section 51(i) than has been perceived.

McHUGH J: Mr Solicitor, supposing an American lawyer

with a Harvard degree came and lived in Victoria

and then claimed to be admitted to the Queensland Bar, would section 92 entitle him to be admitted,

having regard to the fact that it discriminates?

MR GRIFFITH:  Your Honour, it must be conceded that the

local provisions can make reasonable provision

for the proper administration of justice in

Queensland and if there is a plain case, as

would be implied in Your Honour's example, that

the person was not qualified in, as it were,

Australian law, one would expect, Your Honour,

there would be no difficulty about justifying

either a prohibition which said, "That's not

enough.", or a provision which said, "You have

to obtained further training, you have to sit

for three stages of the local exam."

McHUGH J:  But supposing he had worked as an associate

for a High Court Judge before he went to Victoria,

so he is familiar with Australian law?

MR GRIFFITH:	Your Honour, one could say one could reasonably take the view that one does not learn all that
much about the law being an associate of a High
Court Judge.  I would have thought such a rule
would be plainly valid. But, Your Honour, that
is the issue of fact which will arise. If there
is a provision - we put it on the basis, if
there is no provision for out-of-State admission,
we would submit there could be a basis on facts,
either proved or informed to the Court as best as may be, that that contravenes section 92. Here, we do not have that difficulty. Since
inception it has been recognized that foreign
qualifications were acceptable.  What was imposed
since inception, apart from those who were already
admitted and the few exceptions, such as
Dr Evatt, admitted for a single case, was the
additional requirement which is almost - it
is non-statutory, it arises from the rules.
When one looks closer, it does not arise from
the rules, it arises from a strained reading
of the form, requiring two additional things
which one can see in the course of history going

C lT 16 /1 /ND	148	15/3/89
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right back to the first decisions in the matter,

and, in particular, DALLEY, that there was an additional requirement of residence and ceasing

to practise elsewhere.

On ex facie, we would submit, neither of

those matters are relevant to the question of the
appropriate level of qualifications to practise

in the court. But, Your Honour, one could have

permutations in fact as to what is discriminatory

and what is not, it depends. And this case shows

how it can take upwards of two days to decide
what seems to be a clear case as to whether

or not it is discriminatory.

DEANE J: What you really say is this, is it not, that

it is like if you have a trade or commerce where

there was a legitimate licensing system and

the conditions of a licence said you cannot

get a licence if your main place of business

is in another State?

MR GRIFFITH:  Yes, we accept that, Your Honour. We would

add the qualification that admission to court

cannot be equated to licensing. I was going

to get to the point of Your Honour's point

yesterday, "What happens if section 92 strikes

parts down?", because we submit, Your Honour,

you cannot get to a result that then there is

no admission system; there must be because the

interest of justice compel that just as if

the ELECTORAL ACT felL there must be power in
this Court to order and supervise an election

because there must be such a provision for the

ordering of the Commonwealth and of the States

and of our constitutional system. But, yes,

we would agree with that.

We would submit that it is established and

we refer to, particularly, what Your Honour

Justice Mason said in AUSTRALIAN COARSE GRAINS

POOL, 157 CLR, as drawing the threads together

but it makes no difference whether a costermonger
pushing the barrow does it in the performance

of a pre-existing contract to deliver apples

from New South Wales to Queensland - we say

that is the contract case, and refer to McARTHUR

and COARSE GRAINS - or whether he pushes the

barrow in the expectations of being able to
set up a stall in Queensland to sell apples

to anyone who wants them - that is the first

SALE AFTER IXPORTATION case. And we say that

in both cases then there is the requisite element.

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MR GRIFFITH (continuing): If I could take the Court briefly

to what Your Honour the Chief Justice said in

AUSTRALIAN COARSE GRAINS, 157 CLR, in particular

at page 6l9 to 630. Your Honour referred to the

controversy of NORTH EASTERN DAIRY and then to

PERMEWAN WRIGHT and the judgments in that case
and then you indicate that the judgments in PERMEWAN

WRIGHT support the proposition, Your Honour says: in general, the first sale in State A by

an importer who has imported goods from

State B for the purpose of selling them in

State A is part of the interstate trade of the

importer, rather than an intrastate transaction

which is inseparably connected with the
importer's interstate trade. It is a

have said that "equally" means not "also" or "as well"

but "to the same extent". But, in our respectful

submission, if you adopt his approach then when you

are making the comparison you must hypothesise a

resident of the State having the same intention as,

in this case, Mr Street and Mr Robertson, and in

each case, it appears from their stated case, not

surprisingly, that each has the intention of practising

principally in New South Wales.

So that even on Mr Justice Stephen's test, in

our respectful submission, in HENRY V BOEHM, the
plaintiffs would fail here. But, in our respectful

submission, the correct approach is the approach

wnich was adopted by the majority in that case.

Your Honours, can I just mention one other matter

before I go on to consider what one must look at

here and that is really in answer to what

Your Honour Justice Brennan raised about the words

"disability" and "discrimination".

(Continued on page 239)

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Street(2)

MR DAVIES (continuing):  The only suggestion which I would

offer is that disability appears before

discrimination. It may be that in disability

the draftsman was thinking about something which

is imposed by legislation, but that it might not

cover something which was imposed by executive

or administrative act pursuant to legislation

and that discrimination was added to cover that

further situation where it might be executive

act instead of, or as well as, the legislation.

Your Honours, in our respectfull submission, purpose is irrelevant in considering section 117.

We would also adopt what our learned friend the

Solicitor-General for South Australia said of

purpose with respect to section 92, but, in our
res pee t f u 1 submission there is nothing, again

either in the terms of section 117 or in its

history, which would indicate that the purpose

in the sense of motive is in any way relevant.

The question, in our respectful submission, is

whether the operation of that provision imposes

a disability or discrimination on the out-of-State

resident which it would not impose on him if he

were a resident of the legislating State.

McHUGH J:	By reference to what standard do you determine whether there is a disability or discrimination?
What do you measure it against?
MR DAVIES:	Well, in this case it is not difficult to

identify, Your Honour. We have identified it

in paragraph 1, but what one really says is, "If

he says that I have imposed on me an obligation by

a statute, and that obligation would not be

imposed on me if I were a resident of Queensland",

or whatever the State might be then, in our
respectful submission, it follows that that is a

disability or discrimination which he would not -

assuming it is an onerous obligation imposed upon

him by statute, requiring him to pay money, or

whatever it might be, not be able to get a licence

or whatever.

(Continued on page 240)

ClT69/l/HS	239	15/3/89
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MR DAVIES (continuing): Your Honours, in our respectful

submission, the question then must be determined.

by looking at the whole of the rules, not this

specific rule. It is important, in our respectful

submission, to look at these rules in context -

rule 15 I am talking about in particular, of course.

Rule 15(d) (3), (4) and (5) offer admission

happen to reside and the condition as to

to those who wish to rely upon admission in another they

"principal place of practise for twelve months",

is imposed on that group and on that group only.

And I emphasize "wherever they reside''. On the

other hand, one can apply under, for example,

rule 15(d)(2) which offers admission to those

who qualify by obtaining a degree in law from,

amongst other things, any other Australian university

approved by the Board. Although, I am told,

recollections differ in this respect, what seems

to have been done is that universities have been

approved on an ad hoc basis and the records of

the Board, I am told, are not such as to enable

a statement of precisely what universities have

been approved, but some have.

I should add, Your Honours, the Board's records are so bad that we cannot say whether any have ever been

not approved but one would imagine, in the ordinary

course, though, Your Honours, that any university

of repute in Australia would be approved on that

ad hoc system. They, once they comply with that,

Your Honours, are not required to have any period

of practise principally in Queensland but they

must undergo the practical training unless exempted.

The practical training is set out in rules 25

and 32 - or at least part of it is.

(Continued on page 241)

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MR DAVIES (continuing):  It is not very onerous. 25 says

that you have to do some reports of cases and

it adds that there may be other practical training

and, in fact, there is at the moment other practical

training which the Board insists upon, and our

learned friend, Mr Greenwood, can tell Your Honours

more about it than I, but in fact it is a Bar

practice course from which exemptions can be

obtain and, indeed, exemptions can be obtained

from the whole of the practical training course.

Again, one would ordinarily think that a barrister

who had been in practice in another State for

some time would probably obtain exemption from

the requirements to do reports and from the requirement

to do the Bar practice course.

So of those persons who apply under (4) or (5)

they are the interstate practitioners, those who

obtained admission in another State, those who

may be disabled or discriminated against by the

requirement of the principal place of practice
during the next 12 months are of two categories;
first, those who intend to practise during the
next 12 months outside Queensland, whether at the

time of the application they are residents of

Queensland or not - and one could imagine that

there might be cases where Queensland re8idents

would have obtained their qualification elsewhere

and intend to go back to practise in another State.

They would be similarly disabled as would Mr Street

or Mr Robertson applying under this rule, and so

similarly in quite a separate category would be

those people who did not intend to practise at

all during the next 12 months but, nevertheless,

wish to obtain admission. No doubt there are many

of those who say they might be going to undergo

some further study during the next 12 months want

to maintain their seniority or obtain admission to obtain some seniority at the Bar before they

undertake their further study. (Continued on page 242)

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MR DAVIES (continuing):  So they would be similarly disabled

or discriminated against. If,Your Honours,

contrary to our submissions, purpose is relevant,

then in our respectful submission, there is no

evidence outside the legislation from which that

purpose could be determined and we adopt) in

our respectful submission, the submissions which

the Solicitor-General for South Australia made

in that respect and we would add that parliamentary

discussion and debate and judicial discussion upon

earlier and quite different provisions_ repealed

can have no relevance to the motive or purpose of

the current legislation.

So, in our respectful submission, what the

legislation shows is that the options which are

offered really depend upon the manner in which you

seek to be admitted, by what qualification you seek

to be admitted, not where your place of residence

might be and it is not to the point, we would submit,

that there might be more people from New South Wales

applying under subrules ( 4) or ( 5), or Victoria, as

the case may be, than there might be Queenslanders,

because it is not, in our respectful submission,

a construction which requires a counting of heads.

Your Honours, in our respectful submission, .

the American and continental cases are of no relevance

to this question. Their provisions are materially

different and, as the convention debates showed and

as our learned friend, the Solicitor-General for

South Australia has already said, the United States

provision was rejected and specifically, its

positive statement of privileges and immunities which

is capable of being construed as a charter of rights,

was rejected in favour of a negative prohibition

against disability or discrimination which could not

be so construed.

Your Honours, that is all we want to say, I think,

about section 11~ Could I then pass to section 92

and first to the question of intercourse. In our

respectful submission, freedom of intercourse is

freedom of personal movement and personal communication

only and it is irrelevant what happens at the end of

that communication, after that communication or, indeed,

before it, or movement as the case may be.

(Continued on page 243)

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MR DAVIES (continuing): There really is an important

difference in this respect between sections 92

and 117 in that the former is dealing with laws

relating to movement of persons into a State

whereas the latter is prohibiting laws

discriminating against them by reason of their

being in the legislating State as interstate

residents.

The Queensland rules, in our respectful

submission, clearly enough do not discriminate

against that movement. On the contrary, in

our respectful submission, they do not affect

the movement. I think we made this submission

with respect to 117 but it applies equally to

intercourse, that the so-called fetter, the

of practice in Queenslan~ is imposed on all persons but only the persons who apply under

requirement that each of Messrs Street and

rules (3), (4) or (5), whether or not they travel

across the border. It is not by reference to

an interstate journey; it is not, in truth,
because of an interstate journey and it is certainly
not an imposition imposed upon that interstate
journey.

Finally, Your Honours, can I come then to trade and commerce and, at the outset, may we make the submission that -

DEANE J:	Does it not impose a disadvantage by reason
of activities outside of Queensland? If that
is a proper analysis, why is not that impeding
freedom of intercourse, that is, going from
Queensland and doing things outside Queensland?

(Continuing on page 244)

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MR DAVIES:  In our respectful submission, if you accept

the proposition that intercourse is freedom of

movement and movement only, then in our

respectful submission, it is not.

DEANE J:  But if a discriminatory burden is imposed

according to whether you do something outside

Queensland or in Queensland, surely there is

something to be said for the view that that is a

discriminatory burden upon intercourse? In

other words, it is saying, "Stay at home and

do it, or otherwise you will suffer a consequence''.

MR DAVIES:  Well, ·in our respectful submission, it is

imposed - well, not necessarily, Your Honour, in

the sense that it is not an imposition upon the

movement and it may be that one who goes to

another State for some other purpose entirely but

does that act, is equally in breach of the

provision that Your Honour has in mind, as someone
who crosses specifically for the purpose of doing

ehat act.

DEANE J:	I suppose it depends on one's concept of "intercourse", but I would have thought a
Queensland law that said, "Any Queenslander who
spends more than three months in any year in a
State of Australia, other than Queensland, will be liable to a penalty", interfered with freedom
of intercourse, even though, you might say, "Well,
it left him free to go backwards and forwards over
the border".
MR DAVIES:	As many times as he likes.
DEANE J:	Yes.
MR DAVIES:	Well, in our respectful submission, we would

submit that answers it; that if, in fact,

notwithstanding that imposition he can go backwards

and forwards across the border many, many times,

then it is not an imposition imposed upon his

freedom to cross that border.

DEANE J:  I can see the force of that, but may that not be

a question that needs to be addressed; that is,

whether, to take the example I gave you, a law that

said, "You must spend nine months of the year in

Queensland", was not an interference with the

freedom of intercourse between all of the States that

section 92 guarantees?

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MR DAVIES:  Yes, well, I accept that is a question that

needs to be addressed, Your Honour, not in this

case, we would submit.

DEANE J:  Why not, because if that interferes with freedom

of intercourse why does not a law that says,

"You must carry on your profession in Queensland

for nine months of the year or for six months and

one day of the year" interfere with the

professional man's freedom of intercourse

throughout Australia?

MR DAVIES:  Your Honour, in our respectful

submission, because it is not directed at the

movement, it applies, for example, as much to a Queensland person who wants to spend most of

his time practising his practice in Queensland

as to a - if it is just a straight provision such

as Your Honour has in mind - as to a New South

Wales person who does not, or to a New South

Wales person who is happy to do that.

DEANE J:  But is not that part of the problem? I mean,

if it is not a repel borders provision, is it not

directed at the movement in the sense of saying,

"If you want to carry on your profession you must

do it most of the time in Queensland"?

MR DAVIES:  We accept it is directed to an activity which

takes place in Queensland but by saying that we

would submit, with respect, it negatives the

conclusion that it attacks the actual movement

into or out of Queensland.

DEANE J:	I can see that if intercourse simply means movement across the border.
MR DAVIES:	If it does not, Your Honours, then one gets

back to the MARRICKVILLE MARGARINE type

situation as to where one really stops in terms

of intercourse, a similar sort of question that

arose in the TRADE AND COMMERCE case.

MASON CJ:  Mr Davies, it may be convenient to adjourn now.

We will adjourn until 10 am tomorrow morning.

AT 4.20 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 16 MARCH 1989

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