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Friday, 26 May 1972
Page: 2188

Senator WRIGHT (Tasmania) (Minister for Works) - I was reminding myself of what happened in the 1970 debate. I looked at the division. Senator Turnbull can be assured that his name does not appear in that division. I suggest that the Senate approach the matter on a basis of simple principle. I suggest that the objection at that time was the requirement by the ordinance of a separation into 3 different categories. That was obligatory. Now the provision in the ordinance, which I submit is quite misunderstood by Senator Murphy and Senator Devitt, is that a person is entitled to admission to the Supreme Court of the Australian Capital Territory if he is a solicitor of another State, if he is a barrister of another State or if he has trained here as a student in the law and applies for admission. However, there is only one certificate of admission and that is as a barrister and solicitor. That is to say, a person's legal entitlement to practise is in the form that he can practise in the whole area of barrister and solicitor. This ordinance simply makes it clear that he is entitled to choose the field within which he has a legal entitlement to practise. Some will choose to practise as an advocate as well as a solicitor. Others will confine themselves exclusively to a barrister's practice and others will confine themselves exclusively to a solicitor's practice. That is the situation in Tasmania whence I come. Of course, that is no argument for the acceptance of it in the Australian Capital Territory. But the situation is that the provisions of the ordinance now challenged by Senator Murphy give all the advantages to the public that he urges and protect the public from all the disadvantages that he condemns.

A man is entitled, if he is of good character and the required competence, to come to the Australian Capital Territory Supreme Court and be admitted to practice. The area of practice encompasses the whole field of solicitors' and barristers' activities.

Senator Murphy - If that were right I would not object to it.

Senator WRIGHT - I will listen to the honourable senator in a minute. This is a technical subject and for the benefit of the Committee I wish to clarify my understanding to the degree to which I can do so. In a few minutes, if a period of question and answer is permitted, I believe it will help the debate tremendously, so long as it does not deteriorate simply into a discussion. This ordinance permits any man of the accepted competence and character to be admitted into practice in the Australian Capital Territory. It gives him the legal entitlement to practise in any field that is encompassed by the practices of barristers or solicitors. He may practise in both fields. Many of the most competent solicitors in this area will continue their barrister's activities and practise as both barristers and solicitors. But if the man says: 'I will be simply a taxation adviser and a company lawyer', he confines his practice to that field as a matter of voluntary selection. If a man says: 'I shall practise only as a barrister in the High Court', he confines his practice to that area, but from the Government's point of view in making the law and providing the ordinance under which the legal obligations are imposed, as between the profession and the public, the situation will be that the man who is admitted to practice can accept work in the whole field of legal practice, either as a barrister or as a solicitor or as a barrister and solicitor. That means that this type of admission gives to the public all the advantages that Senator Murphy urges but imposes on the public none of the disadvantages that he condemns.

For my part, having practised in Tasmania and knowing something of the thought within the profession, I believe that the system that Mr Hughes, when AttorneyGeneral, incorporated in this ordinance with the complete concurrence, as I understand it, of all members of the Bar who had made representations and of members of the Law Society, gives faithful expression to the views that the majority of the members of the profession sought to establish when this matter was last debated in 1970. That is to say, admission to the court roll gives a person entitlement to practise over the whole field, but within that whole field those who are admitted may voluntarily select specialities in which they wish to practise.

I come now to the point where some distinction is made. I feel that out of candour I should mention this aspect even though I do not want to make a long speech. A person who is not practising as a solicitor and therefore is not receiving moneys on behalf of clients to carry out transactions, as he would do if managing a property conveyance and receiving the purchaser's $10,000 today and waiting a week before settlement with the vendor - he would be compelled to hold those trust moneys in his trust account - is not required to observe the provisions of the trust account in the ordinance. These provisions concern only the person who is admitted to practise as and who undertakes the work of a solicitor. Very rigid rules have been laid down as to the particularity with which a person must manage a trust account and the integrity of it. Of course, a breach of those rules on the part of a solicitor is a very serious breach of discipline.

The provisions of the ordinance operate simply because a person is practising as a solicitor, not because he is admitted to the roll of practitioners entitled to practise either as a barrister or a solicitor. I submit that the ordinance that is being attacked today, in these respects, faithfully gives expression to the viewpoint of the majority of the Senate in 1970. At that time I was one of the minority and represented the previous ordinance and expounded it on behalf of the AttorneyGeneral. But the Attorney-General faithfully gave expression to the viewpoint of the Senate with the concurrence of the organised profession and without objection, so far as I know, from any barrister who has made representations to the AttorneyGeneral's Department.

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