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Tribunal debates New Zealand barrister’s right to work in Australia
Whether a New Zealand barrister could be employed in an equivalent position in Australia under a trans-Tasman deal was questioned by a tribunal and four major Australian bar associations.
Naomi Neilson
Administrative Appeals Tribunal (AAT) deputy president Peter Britten-Jones upheld the decision of the NSW, Victorian, Western Australian, and ACT Bar Associations to not allow New Zealand barrister Timothy Little to register as a barrister in the respective state and territory.
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Britten-Jones’ decision was made with Grant Pearson, the chairperson of the New Zealand Trans-Tasman Occupations Tribunal, which marked the first time a chairperson of a New Zealand tribunal was invited to sit in on an Australian tribunal matter.
In addition to finding Little’s application was “frivolous, vexatious, misconceived or lacking in substance”, the NSW Bar said he had no standing to register in the state because he had allowed his New Zealand practising certificate to lapse in June 2023.
The Victorian Bar found Little’s position as an employed barrister in New Zealand was not equivalent to a barrister in Victoria. This was supported by the Western Australian Bar Association.
Although the ACT Bar’s refusal decision was outside of the one-month period, it told the AAT it would have still refused on the equivalency grounds and for the lack of a New Zealand certificate.
Little contended “none of the grounds for refusal … are made out” and there was “nothing materially false or misleading” in his notice or in his practising certificate in support of his application.
He added the registrations should have been carried out because the positions in both countries “are substantially the same or would be substantially the same upon imposition of appropriate conditions”.
Britten-Jones and Pearson said it was important for the AAT to take into account Little was no longer registered as a barrister in New Zealand and the lapsed certificate “does make a difference”.
“It would be an odd result if the tribunal in effect was required to ignore the fact that the applicant is no longer registered in New Zealand,” Britten-Jones and Pearson said in the judgment.
They added to ignore it would be contrary to the Trans-Tasman Mutual Recognition Act (TTMRA), which allows a person registered in one country to practise in an equivalent position in the other.
Using that interpretation of the TTMRA, Britten-Jones and Pearson said Little does not fit within the purpose of the act because he is not registered as a barrister in New Zealand.
“If it were otherwise, then an applicant could simply register in New Zealand … and then deregister immediately thereafter which would defeat the purpose of the TTMRA,” they found.
Even if he were registered, the members found Little had not achieved full qualifications to perform the activities of an Australian barrister and was still required to be supervised.
“The registration of the applicant as a barrister in the Australian jurisdictions would be contrary to the Trans-Tasman mutual recognition principle because it would allow a person with requirements of supervision and far fewer qualifications to become registered as a fully independent barrister with no requirements of supervision,” Britten-Jones and Pearson determined.
