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Thursday, 20 September 2007
Page: 200


Mr Price asked the Attorney-General, in writing, on 7 August 2007:

(1)   Are legal practitioners in the Federal and State jurisdictions required to be persons of good character and fame.

(2)   Does he require the maintenance of high professional standards by legal practitioners.

(3)   Can a solicitor registered in New South Wales (NSW) practise in Federal jurisdictions.

(4)   Can a solicitor registered in NSW practise concurrently in another capacity, such as a migration agent or marriage celebrant; if so, is a disbarred solicitor prevented from continuing to act as a migration agent or marriage celebrant; if not why not.

(5)   If a solicitor is barred from practising in NSW, does the NSW Attorney-General advise him that this has occurred.

(6)   Does he advise his NSW counterpart if a migration agent or marriage celebrant is suspended; if not, why not.

(7)   Does he initiate any action with the relevant legal disciplinary when a solicitor also practising as a migration agent is suspended for misconduct; if not why not.


Mr Ruddock (Attorney-General) —The answer to the honourable member’s question is as follows:

(1)   In the past, a ‘good fame and character’ (or similar wording)-based test was applied in State and Territory jurisdictions. However, consistent with the outcomes of the national legal profession Model Bill project, most jurisdictions have recently adopted a less subjective ‘fit and proper person’-based test to determine suitability to both: (i) be entered on the role of practitioners in their local Supreme Court and (ii) be issued a practising certificate from the local regulatory authority (typically the State or Territory Law Society). Western Australia, South Australia and Tasmania, which have not yet implemented legislation based on the Model Bill (but have advised that they will do so in the near future) use ‘of good fame and character and fit and proper’, ‘of good character’ and ‘of good fame and character and is a fit and proper person’, respectively. The entitlement to practise in a federal court depends, in turn, upon an entitlement to practise in the Supreme Court of a State or Territory (described above), and entry in the Register of Practitioners kept in the High Court. In addition, under the Judiciary Act 1903, certain Commonwealth officers and lawyers of the Australian Government Solicitor may appear in federal, State and Territory courts.

(2)   Regulation of the conduct and professional standards of legal practitioners is the direct responsibility of State and Territory Governments. Nevertheless, I have been working closely with my State and Territory counterparts to ensure that a consistently high level of conduct and professionalism is required in all jurisdictions. The outcome of that work is reflected in the various State and Territory Legal Profession Acts. Regarding legal practitioners who are engaged by the Commonwealth, I have issued the Legal Services Directions 2005, which require, in litigation, Commonwealth agencies (and, by extension, their legal representatives when acting on their behalf) to behave as model litigants. Further, the Directions require that the Commonwealth must not brief a barrister who has been bankrupt and whose bankruptcy was the subject of an adverse disciplinary finding by the relevant State or Territory regulatory authority, without my approval.

(3)   Yes.

(4)   I am advised that New South Wales has no rules barring legal practitioners from also practising as migration agents or marriage celebrants. The Commonwealth similarly has no bar on migration agents or marriage celebrants also being legal practitioners. When a person’s practising certificate is revoked in New South Wales, the Legal Profession Regulations 2005 (NSW) allow the Law Society of NSW to share information regarding that refusal with the Migration Agents Regulatory Authority (MARA). I am advised that, in addition, the MARA regularly checks the Legal Practitioners Disciplinary Register on the website of the Office of the Legal Services Commissioner. Where a registered migration agent has been disciplined by the Law Society, the MARA will conduct its own investigation concerning the disciplinary action to determine whether the lawyer-migration agent is not a fit and proper person to provide ‘immigration assistance’, or is not a ‘person of integrity’ as defined by the Migration Act 1958. If the MARA concludes that either, or both, is the case, it will sanction the agent. The sanction imposed may be a caution, suspension or cancellation of registration. Lawyer-migration agents, when applying for registration or re-registration as a migration agent, must disclose to the MARA whether they are subject to investigation or disciplinary measures related to their legal practice. The MARA then investigates these issues and considers whether the solicitor’s conduct is sufficient for the MARA to refuse registration, and/or bar the agent from returning to the industry for a certain period of time if they are applying for re-registration. A Commonwealth-registered marriage celebrant may be deregistered for a number of reasons set out in subsection 39I (1) of the Marriage Act 1961, including that the Registrar of Marriage Celebrants is satisfied that the marriage celebrant is no longer entitled to be registered. If a NSW solicitor, registered as a Commonwealth-registered marriage celebrant, was removed from the roll or refused a practising certificate then the Registrar of Marriage Celebrants could consider whether the behaviour which caused the that removal or refusal, also caused him or her to no longer meet the ‘fit and proper’ person test in the Marriage Act.

(5)   The New South Wales Attorney-General does not, in the ordinary course, raise individual decisions of that type directly with me. When a solicitor is removed from the roll of the Supreme Court of New South Wales, the Registrar of the Supreme Court is required to notify the Registrar of the High Court. When a solicitor is refused a practising certificate in New South Wales, the Legal Profession Regulations 2005 (NSW) allow the Law Society of NSW to share information regarding that refusal with the Registrar of the High Court.

(6)   I do not, in the ordinary course, raise individual decisions of that type directly with the New South Wales Attorney-General. I am advised that the MARA advises the relevant legal disciplinary body of all cases of misconduct that come to its notice where action by the relevant legal body might be warranted. When the MARA sanctions a registered migration agent, (i.e. caution, suspension, cancellation, or bar) the MARA places the information on the Register of Migration Agents, available on the MARA website, with a link to the decision record. In accordance with section 39B of the Marriage Act, the Registrar of Marriage Celebrants maintains a Register of Marriage Celebrants and all information contained in the Register is available on the Internet. When a marriage celebrant is deregistered, the Registrar of Marriage Celebrants removes the celebrant’s name from the Register of Marriage Celebrants. In addition, every month, the Registrar of Marriage Celebrants circulates a list to all State and Territory Registrars of Births, Deaths and Marriages. This list provides details of all marriage celebrants whose registration has been revoked during that month.

(7)   I do not, in the ordinary course, raise individual decisions of that type directly with the responsible State or Territory legal disciplinary body. I am advised that the MARA advises the responsible legal disciplinary body of all cases of misconduct that come to its notice where action by the legal disciplinary body might be warranted. When the MARA sanctions a registered migration agent, (i.e. caution, suspension, cancellation, or bar) the MARA places the information on the Register of Migration Agents, available on the MARA website, with a link to the decision record.