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Friday, 26 May 1972
Page: 2190


Senator MURPHY (New South WalesLeader of the Opposition) - I am closing-

The ACTING DEPUTY PRESIDENT (Senator Wood) - The honourable senator cannot close the debate until the Senate disposes of the amendment. The only senator who can close this debate is Senator Devitt


Senator MURPHY - I understood that we were to treat the amendment as the substantial matter.


Senator Wright - Senator Murphy has spoken once to the amendment. I suggest he be more reasonable.


Senator MURPHY - I will ask leave to speak again.


Senator Greenwood - Leave is not granted.


Senator MURPHY - Because of the way way this matter has proceeded, I wish to speak only to answer a question that was raised.


Senator Greenwood - Senator Murphy has spoken twice already.


Senator MURPHY - I wish to close the debate which was treated as being in relation only to the amendment. A question has been raised since then and I wish to have the opportunity to answer the question that was asked by Senator Turnbull and replied to, I believe, erroneously by Senator Wright. I again seek leave to speak. If leave is not granted, I will move for the suspension of Standing Orders.


Senator TURNBULL (TASMANIA) - I rise to order. I do not quite follow your ruling, Mr Acting Deputy President. A motion was put by Senator Murphy and an amendment was moved. Surely Senator Murphy has the right to close the debate. Surely we are not going to have a vote on the amendment and then start the argument all over again. If Senator Murphy were allowed to close the debate now, we could have a vote on the amendment and then a vote on the motion.

The ACTING DEPUTY PRESIDENT (Senator Wood) - Senator Murphy has already spoken, and it is not possible for him to close the debate on the amendment.


Senator Murphy - I seek leave to reply shortly to what has been said. I do not wish to speak on other than the amendment.

The ACTING DEPUTY PRESIDENT - Is leave granted? There being no objection, leave is granted.

Senator MURPHY(New South WalesLeader of the Opposition) - The question raised by Senator Turnbull is one which is very critical to the determination of this matter. If, as Senator Wright said, one was entitled, on admission to practice, to choose to do what one liked and to operate in any capacity - to specialise, say, in taxation, advocacy, conveyancing or something else - there would be no objection. That is exactly what is wanted. That is the desirable position. It is all that the Opposition and, I believe, the majority of the Senate wanted on the previous occasions. Nothing is more clear than that. As it is, the law - without the objectionable provisions of this ordinance - provides that a person can be admitted as a barrister and solicitor, that is, to the one category. He could do, without any more, all of the things which are embraced in that. What has happened is that the position has been altered to the effect, as is stated in section 10 of the amending Legal Practitioners Ordinance, that a person is now entitled to practise in one of 3 categories. That provision may be unnecessary except that it starts to draw distinctions between the persons practising. Section 11 sets out the whole scheme - one may see it in proposed section ISE of the principal Ordinance by which the separation by restricted practising certificates is to be achieved. Unless one has an unrestricted practising certificate one cannot practise as a solicitor.


Senator Durack - That is not right. One cannot practise on one's own account.


Senator Wright - The employee has a restricted practising certificate and the principal has an unrestricted practising certificate.


Senator MURPHY - One is employed, yes. One cannot act as a principal - as a solicitor - but merely as an employee. That draws the distinction within the profession that was in the 1969 legislation. That legislation had similar provisions in relation to the practising certificate. So it is a matter of words. It can be said, as Senator Wright has put it, that one may do what one likes voluntarily, but in proposed section 15E there is a restriction on the issue of practising certificates which would exclude a great number of persons. There are persons who can obtain a practising certificate, such as employees of the Attorney-General's Department. But persons in other departments cannot. The provision excludes persons who have gained their qualification and experience through universities or similar institutions, whether teaching in law or not. lt excludes those who are acting in a legal capacity in the defence forces. It excludes those employed by the Commonwealth who are not in the AttorneyGeneral's Department, those in private enterprise and those employed by State or local governments, and gives a special privilege to those who happen to be practising in the legal profession in the Australian Capital Territory. That is provided for in sub-section 3 of proposed section 15E, which provides:

This section does not apply in relation to a person who was, immediately before the commencement of this Part, practising in the Territory as a solicitor on his own account or in partnership with another barrister and solicitor if, within the period of 3 months after the commencement of this Part, he applies for an unrestricted practising certificate.

That is restricted to those in the Territory. One is not surprised, if the tendency to restrict practice is in such favourable terms to those in the Territory, that they - all of them - do not view this with disfavour. The objection remains that if this provision goes through there will be a divided legal profession. Although in theory there will be barristers and solicitors some people, by the operation of the practising certificate, will be prevented from doing what they want to do. We will not have the ideal stale of affairs, which is what we want and which is agreed on all hands to be desirable, of a person complying with whatever rules apply on admission and being able to practise whatever capacity he wants to practice in.


Senator James McClelland (NEW SOUTH WALES) - Do they have this triangular division in Tasmania?


Senator MURPHY - No, they do not.


Senator Wright - I beg your pardon?


Senator MURPHY - Does this triangular division exist in Tasmania?


Senator Wright - It is qualified there because there is a separate admission for mainland barristers who practise as barristers only. That is in deference to the northern island.


Senator MURPHY - The answer is that this situation does not exist in Tasmania.


Senator James McClelland (NEW SOUTH WALES) - Or anywhere else.


Senator MURPHY - Or anywhere else. I request that these objectional provisions be deleted and that the profession have one form of admission and one form of practice and that there be not perpetuated the division which will be brought into effect if these objectionable provisions are allowed to stand.


Senator Greenwood - I seek leave to reply, in a few sentences, to the remarks of Senator Murphy.

The ACTING DEPUTY PRESIDENT (Senator Wood) - Is leave granted? There being no objection, leave is granted.

Senator GREENWOOD(VictoriaAttorneyGeneral) - All I want to say is that the requirement for a practising certificate is for the protection of the public. A person cannot hold himself out as a barrister and solicitor unless he has a practising certificate. The public must be protected against persons - charlatans and others - who seek to offer legal advice when they do not have the ability to do so. That is the reason why we have practising certificates. The whole impact of what Senator Murphy was saying - I have risen only to make this point - was to suggest that if practising certificates were done away with there could be a situation which would serve the public interest. We could not have a situation which would serve the public interest if we did away with practising certificates. It is necessary to have them to ensure that it is only persons capable of practising to whom one can go for legal advice. The difference between a restricted practising certificate and an unrestricted practising certificate is that an unrestricted practising certificate is granted to a person who is in business on his own account and can have employees and a restricted practising certificate is given to a person who is simply an employee.

Question put:

That the words proposed to be inserted (Senator Devitt's amendment) be inserted.







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