The attempt to create uniform nationwide rules for the admission of foreign lawyers has come unstitched at the seams.
There has been mounting opposition to the 2008 admission rules because they made it too difficult for good quality non-Australian legal practitioners to get practising tickets.
Various well-credentialled lawyers from Europe and England couldn’t get into the charmed circle here because they hadn’t studied the Torrens system and other peculiarities of Australian life.
The whole edifice of uniformity sprung a big leak when Chief Justice Spigelman decided that the NSW admission board should invoke its discretion under the section 24(4) of the Legal Profession Act and let in eight foreigners who hadn’t spent two years swotting up on local law.
The 2008 uniform admission rules were drawn up by the Legal Admissions Consultative Committee (LACC), chaired by Melbourne academic and Blake Dawson special counsel Prof Sandford Clark and comprising representatives from state admitting authorities.
The new regime was designed to achieve nationwide consistency and to act on the perception that New South Wales’ more lenient admission practices made the jurisdiction a “gateway” for an Australian ticket.
NSW was always sceptical about the uniform rules and wanted a “Jonathan Sumption” clause which would allow in eminent people from the Sceptred Isle.
See earlier report, Protecting our own.
Other states, historically and culturally, were always much more inclined to say “no” to new entrants.
Concerned about declining academic standards overseas, the LACC was keen to make sure everybody did the “Priestly 11”, regardless of eminence or experience: crime, torts, contracts, property, equity, companies, admin, constitutional, civil procedure, evidence and ethics.
Conditions are particularly strict for applicants from common law countries on the subcontinent and in Africa (but not South Africa).
The LACC introduced compulsory English language proficiency testing for tinted people.
Only applicants educated in Canada, Ireland, New Zealand, the United Kingdom, the USA and South Africa are exempt.
Indian, Pakistani and African law schools (apart from South Africa) were singled out for particular scrutiny.
Admitting authorities were to keep their eye out for such giveaways as spelling errors in course materials as evidence of cereal-box qualifications.
In theory at least, a uniform scheme sounds like a good idea. In practice, it lacked finesse.
Wolfgang Babeck who had a distinguished academic and professional career in Germany and England had been knocked back and told to start studying again. So too the special counsel for Total Oil.
Under the rules Jonathan Sumption would have to swat Australian law before he could saddle-up for a huge fee fest at the Sydney bar ‘n’ grill
Babeck is among the eight were were admitted under the discretionary powers of the Legal Profession Act, NSW. He’s now at Dibbs Barker.
Pressure quickly began to mount on the LACC from all corners.
By the end of 2008, the Law Council had launched its own investigation into the rules – to the chagrin of Sandy Clark (pic), who complained that no one from LACC had been invited to be part of the review.
Tim Bugg, the chairman of the International Legal Services Advisory Council (ILSAC) began fielding a flurry of complaints from disgruntled British practitioners who had been told to go back to law school.
Australian lawyers were finding it tough to practice overseas themselves as other countries responded to “fortress Australia” in kind.
The Attorney General Robert McClelland was copping flak from his overseas counterparts.
His attempts to open the Indian legal market to Australian lawyers (currently closed to non-citizens) were thwarted.
Soon there was talk that the rules should merely be “guidelines”.
It came to a head in December when the admission board in NSW reached for the section 24 discretion and let in the eight eminences who had been told to pass the Priestly 11.
To preserve “uniform” admissions all jurisdictions will be allowed to have discretionary admissions, which means they can ignore the rules if they feel like it.
The discretions are to be government not by new rules, but by “guidelines”.
Justice Michael Slattery from the NSW Supremes spelled out the change of tack in a memo to Spigelman written after he attended the most recent LACC meeting earlier this month.
“All LACC members and the chairman now accept the usefulness of the NSW s.24(4) Legal Profession Act 2004 discretion to exempt candidates for admission from approved academic qualifications and practical requirements.
LACC is no longer asking NSW to refrain from exercising the discretion because of its perceived inconsistency with the uniform principles for assessing qualifications.
It now seems likely that other states will seek to adopt the same unconfirmed discretion as exists in NSW.”
Roll on the “national” profession.