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Wednesday, 30 March 1966

Mr SNEDDEN (Bruce) (Attorney General) . - I am quite surprised at the amendment which has been moved by my honorable and learned friend the Deputy Leader of the Opposition (Mr. Whitlam) because it does not do what he wants it to do. I think what he wants to do is to provide a vehicle to discuss the question as to whether or not a future ordinance relating to the admission of practitioners within the Territory could, in terms of that ordinance, preclude certain people from the right to admission to practice pursuant to the form set up under that ordinance. His amendment negatives the Bill. It is a direct negative to the Bill. It says -

This House is of the opinion that no ordinance should deny the right to practise as a barrister in a Territory to a person who has been admitted so to practise in any State.

That is the exact situation under the Judiciary Act now and which is sought to be changed by the Bill.

I do not take this as a mean debating point or anything of that kind, but I point out to the honorable gentleman that to pass the amendment would be to negative the Bill. It is for this reason that the right to practise as a barrister in the Territory is now assured by section 49 of the Judiciary Act which is about to be repealed. What the honorable gentleman might have better said in his amendment - and I say this with respect - was -

This House is of the opinion that no ordinance made pursuant to the power given by this Act should deny the right to admission to practise as a barrister -

The amendment has been confined to " a barrister" whereas it ought properly to extend to the less flamboyant but more solid section of the profession, the solicitor.

Mr Whitlam - This was deliberate, because we did want it to ensure that there were fidelity funds for solicitors who were admitted here and practised only here.

Mr SNEDDEN - I see. Am I to understand from the comment of the Deputy Leader of the Opposition that what he really wants is a provision in the Bill that an ordinance made pursuant to the Act will not contain a provision whereby a person who is an admitted practitioner in a State is denied the right to admission to practice in the Territory?

Mr Whitlam - Yes.

Mr SNEDDEN - The amendment does not express that, because it seeks to take away the automatic right to practise at some time in the future - and not the distant future either - which, I think, could best be described for this purpose as a right to audience. It seeks to take away the automatic right to audience and substitutes for it a provision whereby the Territory can itself erect an admission system so that if a State practitioner wanted to practise in the Territory he would first have to be admitted as a practitioner of the Territory before he had his right to audience.

Mr Whitlam - Yes.

Mr SNEDDEN - For those reasons, I suggest to the honorable gentleman that we regard this as a vehicle for discussion of the point, but, with respect, I suggest to him that he do not press the amendment to a vote because, were it to be successful, it would, for the reasons I have outlined, defeat his own purpose.

Mr Whitlam - I like the words the Attorney-General suggested at the beginning.

Mr SNEDDEN - Let me deal with the matter as though the words were " shall not deny the right to admission as a barrister ". That raises a difficult problem. The honorable gentleman has himself pointed to the future that lies ahead of this Territory for the evolution of its legal practitioners and their association, whether they be barristers or solicitors, and to the growing importance of the Territory within the general framework of the Federal system.

Mr DEPUTY SPEAKER - Order! I point out to the Deputy Leader of the Opposition that he can obtain leave to amend his proposed amendment.

Mr Whitlam - I ask for leave to substitute " admission " for " practise ".

Mr DEPUTY SPEAKER - There being no objection, leave is granted.

Mr SNEDDEN - I do not know whether I should have made the suggestion. I still feel that it would be a mistake to pass this amendment, even in its amended form. We have set out, as the Deputy Leader of the Opposition recognises, to create a situation in the Territory where the Territory has, among its legal practitioners, a correct courtpractitioner relationship. The only way in which a correct court-practitioner relationship can be established is by a law - in the case of the Territory, an ordinance - that establishes the right to admission and specifies the qualifications that must be possessed, before admission as a practitioner can be granted. I do not think we are in dispute on that question. I think it is unarguable.

The next point is that we have in the Australian Capital Territory an undergraduate school within the Australian National University. That University has a faculty of law which has a high and growing reputation and a great number of students. It is my hope, and I am sure that of the honorable gentleman, that people who pursue their law courses at the Australian National University will be able to continue on within the Territory, there to do their articles, to be admitted to practise and, upon admission to practise, to have the right to go to a State, if they so choose, and there be admitted to practise on the basis of their admission to practise in the Territory.

This involves reciprocity of recognition between the States and the Territory. If the legislation contained a provision such as is included in the amendment proposed by the Deputy Leader of the Opposition, it would deprive the Territory of any capacity to seek reciprocity. The legislation would then say that a practitioner from a State must be able to practise in the Territory, but it is beyond the constitutional competence of this Parliament to require that a practitioner admitted in the Territory shall have the right to be admitted to practise in a State. The matter therefore depends upon negotiation, and I am sure the honorable gentleman will concede that it would be wrong to deprive one of the negotiators - who is, of course, at the outset in the weaker position of the two in any event - of the very thing about which they are negotiating - reciprocity of the right of admission, based upon the fact of admission in a State or Territory, whichever the case may be. For those reasons, I think that the proposed amendment should fail.

Another reason why I think it should fail is that, as the Deputy Leader of the Opposition has pointed out, it is specifically con fined to a barrister. 1 think this point is best expressed by the words that the honorable gentleman himself used. He said that a litigant should be able to get the best cab off the rank. What is the situation in Victoria? If a litigant in Victoria wanted the best barrister available, he would have available to him in the State courts only practitioners who were admitted within Victoria pursuant to the Victorian law. My honorable friend comes from New South Wales. I do not know whether he has been admitted in Victoria, but a great number of his colleagues from the New South Wales Bar have been admitted in Victoria and have the right of audience pursuant to that admission to practise. The Victorian litigant has available to him only the range of practitioners who are admitted in Victoria. The same position applies in every State. A person who is a litigant can choose only from counsel who have been admitted to practise in that particular State. Why should it be that, in the Territory, when the Territory is exercising its wholly domestic jurisdiction, such as one would find in the Supreme Courts of the States or in petty sessions for that matter, litigants should be in a better position or even a different position, or, more importantly, that the profession in the Territory should be in a different and disadvantageous position? For that reason, I do not accept the proposal.

The solicitors constitute a very important branch of the legal profession. A solicitor is just as vital to the proper conduct of litigation as is counsel who appears in a court. For that reason, I believe it is wrong that the law should be expressed in terms of confining it to a barrister. Might I make another suggestion to the Deputy Leader of the Opposition? I think that what he is really concerned about is not that there should be a provision that a person admitted to practise in a State ought to have the right also to practise in a Territory, but that there should be no closed shop. That is what the honorable gentleman has in mind, I believe.

Mr Whitlam - Yes.

Mr SNEDDEN - Let me put this to the House: I think it goes without saying that all honorable members would want the law of the Territory to establish the right admission and would desire the right adshould cover the whole procedure. I think also that every member of this House would not want that law, when passed, to have built into it a provision whereby interested persons within the Territory could themselves apply a closed shop. In point of fact the honorable gentleman is fighting the battle before it begins. The time at which to fight the battle of the closed shop is at the time of the ordinance. I am unable to give a statement of opinion on behalf of anybody who succeeds me in the office J now hold, but I can make abundantly clear my own view of the matter. It is that no ordinance passed pursuant to this law should contain any provision whereby persons serving their own local interests, one might even say selfish interests, shall be able to create a closed shop. I ask the House to support me in this matter. This Act, for these purposes, stands like a constitution behind the law making authority, that is, the ordinance. I would not like to see in that constitution type of legislation a provision restrictive as it is in the terms expressed by the Deputy Leader of the Opposition which would deprive the Territory of the right or the capacity to approach a State to negotiate reciprocity. At the present time, there is no reciprocity. This is what the Territory wants. This is what the law school of the Australian National University wants.

Mr Whitlam - Hear, bear!

Mr SNEDDEN - I think that, for that reason, we should not deprive the Territory of the opportunity to negotiate that reciprocity. For all the reasons I have given, I very strongly oppose the amendment, although having ultimately identified the vehicle of the amendment I can say that the thoughts that it seeks to express are ones which I personally find rather close to my own thoughts. But 1 do oppose the amendment as expressed.

Amendment negatived.

Question resolved in the affirmative.

Bill read a second time.

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