Mutual Recognition (Western Australia) Act 2001 (WA)

Practice and procedure - Legal practitioners - Application for admission as a legal practitioner pursuant to State and Commonwealth mutual recognition legislation - Applicant admitted to practice in New South Wales - Where applicant convicted of criminal offence and appeal against that conviction dismissed - Where conviction prior to study of law - Whether Court retains a power to refuse admission on character grounds even though a practitioner is admitted in another state and has met all the requirements for admission under the mutual recognition legislation

Legal Practice Act 2003 (WA), s 3, s 27, s 28, s 28(1)(c), s 28(2), s 30, s 35, s 38, Pt 12, s 161

Legal Practitioners Act 1898 (NSW) (repealed), s 10

Mutual Recognition (Western Australia) Act 1995 (WA)

Mutual Recognition (Western Australia) Act 2001 (WA)

Mutual Recognition Act 1992 (Cth), Div 3 Pt 3, s 17(2), s 18, s 19, s 19(3), s 20, s 20(1), s 20(2), s 20(4), s 21, s 22, s 23, s 24

Supreme Court Ordinance 1861 (WA) (repealed), s 19

Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2007] WASCA 49

In Re Davis [1947] HCA 53; (1947) 75 CLR 409

In Re Justices of the Court of Common Pleas at Antigua (1830) 1 Knapp 267

Re Petroulias [2004] QCA 261; [2005] 1 Qd R 643

Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461

Tkacz v The State of Western Australia [2005] WASCA 108

Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279

1 JUDGMENT OF THE COURT: On 5 December 2006 a full bench of the General Division of the Court sat to hear argument relating to an application by Michael Tkacz for admission as a legal practitioner. After hearing argument and considering the issues that had been raised, the Court announced that Mr Tkacz should be admitted as a practitioner for reasons that would be published in due course. These are those reasons. Mr Tkacz was duly admitted as a practitioner on 20 December 2006.

2 The issues that arose in relation to the admission of Mr Tkacz as a legal practitioner were the consequence of his conviction of a criminal offence on 18 December 2003. That offence, and the circumstances which gave rise to his conviction, are conveniently set out in the following paragraphs taken from the judgment of Steytler P in Tkacz v The State of Western Australia [2005] WASCA 108 at 4 - 7 in the appeal from that conviction:

"1. ... On 18 December 2003, after a trial by jury, the appellant was convicted on one count of being a public officer who, without lawful authority or reasonable excuse, acted corruptly in the performance or discharge of the functions of his office so as to gain a benefit to any person, contrary to s 83(c) of the Criminal Code (WA). He had been charged with two such counts but was convicted only on the first of them. He now appeals against that conviction.

2. The public office held by the appellant was that of telecommunications manager at Curtin University ('Curtin'). Curtin provided him with a corporate credit card so that he could use it to purchase goods or services on its behalf. He used it, on 21 December 1996, to buy two Motorola mobile telephones. Shortly afterwards, he gave one of them to a work colleague, Ms Audrey Daniel, as a present for her private use. He gave another mobile telephone (he said that it was not one of those purchased on 21 December 1996) to his wife, Mrs Vicki Tkacz, from whom he had recently separated. Until 22 December 1997, Curtin paid the telephone bills for Ms Daniel's telephone ('Daniel telephone'). It also paid the telephone bill for Mrs Tkacz ('Tkacz telephone') until about May 1998. The appellant's conduct in respect of the Daniel telephone led to count 1 on the indictment, being that on which he was convicted. His conduct in respect of the Tkacz telephone led to count 2 on the indictment.

3. Ms Daniel's evidence at the appellant's trial was that, when the Daniel telephone was given to her, she was told by the appellant that it was going to be put 'on the university's corporate plan' but that, when the appellant had 'sorted everything out', it would be 'switched' into her name and the bills would be sent to her (transcript 130). She did not receive any bills for about a year, but she had been told by the appellant that 'he was taking care of everything and that he would give it all to ... [her] and ... [she] would reimburse him for the amount because he had to sort out the plans' (transcript 131). The appellant did not show Ms Daniel any bills over the period of about a year and she was not aware that Curtin was paying for the calls made on the telephone. She said that she was asked at one point (she could not remember when) to reimburse the appellant and that she gave him an amount of money but could not remember what amount. On 22 December 1997 she signed a 'Personal Mobile Telephone Contract' with Telstra Ltd (the carrier) at the appellant's request and, thenceforth, she began to receive, and pay, the bills for the telephone.

4. In her evidence, Mrs Tkacz said that, at the end of 1996 or early in 1997, the appellant gave her the use of a mobile telephone and the use of a car. Both were for her 'unlimited' personal use (transcript 146). She had no recollection that the telephone was to be used only in emergencies. She used the telephone for general personal use. She never saw, or paid, any bills in respect of it. She assumed that the appellant had obtained the telephone, like his car, as part of his salary package. She was later asked to return the telephone to the appellant and did so (she could not remember when).

5. Evidence was also given at the trial by Mr Gary Wood. He was, from January 1997, employed in Curtin's telecommunications branch ('branch'). He reported to the appellant. He said that mobile telephones were purchased for use in the branch. He was asked to take on responsibility for the payment of telephone accounts. There were then five mobile telephones for which bills were received in the branch 'on three or four accounts', although Mr Wood had seen only two telephones, being those used by the appellant and his assistant (transcript 160). He was asked by the appellant to consolidate the accounts into one account. When he did so, in January 1997, he asked the appellant who were the owners of the telephones and was told that the telephones were 'issued on loan to other staff that wanted to use them' (transcript 161). He was also told that, when the consolidated account was received, he was to 'assign the cost ... to various internal cost centres and to particular line items' (transcript 161). He said, in his evidence, that in relation to two particular mobile phones, service numbers 226 (which turned out to be the Tkacz telephone) and 439 (which turned out to be the Daniel telephone), calls were made and costs were incurred and these were paid for by Curtin. Mr Wood said, in this last respect, that he completed an authority to pay, referred to as an 'allonge', in respect of each bill and that that document was sent to 'financial services' which would attend to payment of it (transcript 174 and 231).

6. In January 1998 the appellant instructed Mr Wood to transfer service number 439 into Ms Daniel's name. In February 1998 an additional bill was received and paid by Curtin in relation to that service but, from then on, service number 439 no longer appeared in the Curtin accounts and bills were sent directly to Ms Daniel. However, between March and May 1998 service number 226 continued to appear in Curtin accounts. Calls were made on that telephone and costs were incurred in respect of it. These were paid for by Curtin.

7. Mr Wood said that, in around February or March 1998, he started to become concerned that he was 'paying bills for ... [telephones] that may have actually been used by people that weren't authorised to do so' (transcript 183). He feared that he might be implicated in unlawful conduct and telephoned Legal Aid, anonymously, in order to obtain legal advice. He also obtained advice from other sources. This led him to speak to one of Curtin's senior managers in about April 1998. He also spoke to the appellant in about March or April 1998 in respect of service number 226. He said that the appellant told him that he had 'checked the bill' and that he had noticed that his wife was still using the telephone. Until then, Mr Wood had not been aware that the telephone had been in Mrs Tkacz's possession. He said (transcript 184) that he had assumed 'based on ... [his] conversations with ... [the appellant] that in fact it had been loaned out to someone and was being used by another Curtin staff member legitimately'. Some time after that, the appellant produced the Tkacz telephone, saying that he had got it back from Mrs Tkacz.

8. Subsequent investigations revealed what had taken place in respect of the Daniel and Tkacz telephones and, in August 1998, the appellant was suspended and his job was taken over by Mr Wood. The appellant was dismissed by Curtin in November 1998.

9. Evidence was also given by Mr John Glassford. He had been Curtin's 'Acting Associate Director of Facilities Management' in 1996. As such, he was the appellant's 'line manager'. He said that he had not authorised the appellant to provide a mobile telephone to either of Ms Daniel or Mrs Tkacz. He also said that he had not authorised the telephone bills of either to be paid for by Curtin.

10. In his evidence at the trial the appellant (who represented himself) said that he bought the two telephones purchased by him in December 1996 with a view to on-selling them to Curtin staff and then reimbursing Curtin for their cost. He gave one of them to Ms Daniel as a Christmas present 'with the clear intention that ... [he] was going to transfer it into her name' and with no intention 'that Curtin ... was going to pay for that phone'. Then, he said, in the stressful environment of his work he 'simply forgot about the phone' (transcript 349). The first time he remembered it was in December 1997 when he went to get Christmas decorations out of his cupboard at home. He saw the second telephone in that cupboard, causing him to remember the Daniel telephone. He promptly asked Ms Daniel whether she had been receiving any bills in respect of it. She said that she had not.

11. The appellant said that he then gave Mr Wood the telephone which had been in his cupboard and asked him whether bills had been coming in in respect of the Daniel telephone. Mr Wood said that they had. The appellant said that he thereupon asked Mr Wood why he had been paying them. While the appellant did not say what response he received to that question, he did say that Mr Wood 'wouldn't have known probably what it was but hadn't said anything ... about it'. The appellant said that he had never seen the bills up until that time. He immediately arranged for Ms Daniel to transfer the telephone into her own name and reimbursed what he believed was the cost of her telephone bills to Curtin (he paid $213, but later learned that more than $700 had been paid in respect of that telephone's accounts).

12. As to the Tkacz telephone, the appellant said that this had been purchased by Curtin in 1994 and that it had sat in a drawer, unused, until he gave it to Mrs Tkacz. He said that he gave the telephone to her for use only in emergencies. Because he believed that she had never been in an emergency, he assumed that she had never used the telephone. He asked her to return it in February 1998 because his relationship with her was not good. She did so and he returned the telephone to Curtin."

3 The appeal against conviction was dismissed by the Court of Appeal in a decision delivered on 13 June 2005.

4 Since the events giving rise to his conviction, Mr Tkacz studied law. Having completed the academic requirements for admission to practice in New South Wales, Mr Tkacz applied for admission to practice in that State. By a declaration dated 1 March 2005, he fully disclosed his conviction and the circumstances giving rise to the conviction to the Legal Practice Admission Board of New South Wales. On 16 August 2005, that Board considered his application and resolved to declare that the matters disclosed by Mr Tkacz "[would] not, without more, adversely affect an assessment by the Board of [his] good fame or character".

5 Mr Tkacz was admitted to practice as a lawyer of the Supreme Court of New South Wales on 7 April 2006. That was the first occasion upon which he had been admitted to practice in any jurisdiction.

6 On 12 April 2006, Mr Tkacz gave notice to the Legal Practice Board of Western Australia ("the Board") of his application for admission as a practitioner of the Supreme Court of Western Australia, pursuant to the scheme for mutual recognition of professional qualifications established by complementary State and Commonwealth legislation. In that notice, verified by statutory declaration, Mr Tkacz: stated that he was not the subject of disciplinary proceedings in any state, nor subject to any preliminary investigations or actions that might lead to disciplinary proceedings in relation to his occupation as a lawyer; that his registration as a lawyer had not been cancelled or currently suspended as a result of disciplinary action; and that he was not otherwise prohibited from carrying out the occupation of lawyer in any state, nor was he the subject of any special conditions relating to the carrying out of his occupation as a result of criminal, civil or disciplinary proceedings in any state. Those statements were all true. He provided an original certificate of his admission by the Supreme Court of New South Wales and an original certificate of fitness provided by the Law Society of New South Wales certifying that he was not the subject of disciplinary proceedings or suspension. That certificate, given under the hand of the Secretary of the Law Society of New South Wales, was dated 7 April 2006. It includes a certificate to the effect that although Mr Tkacz had not applied to the Law Society of New South Wales for a practising certificate, he would be entitled to such a certificate upon application. That practising certificate would be restricted to the effect that he would be entitled to practise as an employed solicitor and barrister. The certificate also states that the Law Society of New South Wales was not aware of any allegations against the applicant for professional misconduct, and had no proceedings pending against the applicant for professional misconduct. It also advises that enquiry had been made of the Office of the Legal Services Commissioner, which had advised that there were no matters before the Commissioner that would affect the admission of Mr Tkacz. The certificate also contains the assertion that to the best of the knowledge and belief of the Secretary to the Law Society of New South Wales, Mr Tkacz was of good character and a fit and proper person to hold a practising certificate.

7 Notice of intention to seek admission under the mutual recognition legislation was given to the Board in the first instance rather than to the Court pursuant to long-standing administrative arrangements between this Court and the Board. For reasons which follow, those arrangements do not strictly comply with the terms of the mutual recognition legislation. It will therefore be necessary for them to be altered and communications have taken place between the Court and the Board to that end.

8 By letter dated 10 May 2006, the Board advised Mr Tkacz that his notice for registration seeking admission under the mutual recognition legislation had been considered by the Admissions and Registrations Committee of the Board at its meeting on 2 May 2006. Mr Tkacz was advised that the Board had resolved:

(a) that it could not provide a certificate to Mr Tkacz pursuant to s 28(1)(c) of the Legal Practice Act 2003 (WA) ("LPA") on the basis of the information before it;

(b) to invite Mr Tkacz to make written submissions and show cause why, in view of his conviction, a certificate pursuant to s 28(1)(c) ought to be provided; and

(c) to write to the Legal Practice Admission Board of New South Wales seeking information in relation to its consideration of his application for admission in New South Wales.

9 Mr Tkacz was requested to provide written submissions to the Board by close of business on Friday, 26 May 2006.

10 The evidence tendered to the Court did not establish whether or not Mr Tkacz had in fact lodged written submissions with the Board. Nevertheless, by letter dated 22 June 2006, the Board advised Mr Tkacz that at a meeting of the Admissions and Registrations Committee held on 21 June 2006, the Board had resolved to hold an inquiry pursuant to s 28(2) of the LPA for the purpose of determining whether he was of good fame and character and fit and proper to be admitted.

11 However, by letter dated 19 October 2006, the Board advised Mr Tkacz that it had taken advice from counsel which had been considered at a special meeting of the Admissions and Registrations Committee held on 13 October 2006. Mr Tkacz was advised that after further consideration the Board had concluded that it had no power to conduct an inquiry pursuant to s 28(2) of the LPA for the purpose of determining whether he was of good fame and character and fit and proper to be admitted.

12 Further, Mr Tkacz was advised that the Board had resolved to rescind its resolution to hold an inquiry pursuant to s 28 of the LPA; that it could not provide a certificate pursuant to s 28; and that the matter would be considered by the Board pursuant to the provisions of the mutual recognition legislation. Mr Tkacz was also advised that the Board had authorised the Chairman to sign a certificate to the effect that Mr Tkacz had observed and complied with the provisions of the Mutual Recognition Act (Western Australia) Act 2001 (WA) ("MRA(WA) 2001"). Mr Tkacz was further advised that the Board would advise the Supreme Court of the circumstances of the application, including Mr Tkacz's previous conviction, and that if requested by the Court, the Board would arrange for counsel to appear on its behalf to assist the Court in any proceedings connected with his admission. That has occurred, and the Court was greatly assisted by the submissions provided by counsel instructed by the Board.

13 A certificate under the hand of the Chairman of the Board dated 14 November 2006 certifies that the Board has resolved that Mr Tkacz had observed and complied with the provisions of the MRA(WA) 2001.

14 A motion for the admission of Mr Tkacz was filed at the Court on 17 November 2006. This was the first document received by the Court signifying an intention by Mr Tkacz to seek admission to practice pursuant to the mutual recognition legislation. That motion was supported by an affidavit by Mr Tkacz and annexed to that was a certificate from the Chairperson of the Board. As I have already mentioned, the motion came on for hearing on 5 December 2006 and Mr Tkacz was duly admitted on 20 December 2006 after advising the Court that he did not insist upon being admitted within the period of one month of the date of lodgment of his motion for admission.

The Legal Practice Act 2003 (WA)

15 Section 27 of the LPA sets out the qualifications required for admission as a legal practitioner. Section 28 of the LPA provides that a person may be admitted as a legal practitioner by the Court if that person has the qualifications specified by s 27, and, inter alia:

"(b) has provided to the Board such evidence as the Board may require showing to the satisfaction of the Board that the person is of good fame and character and fit and proper to be so admitted;

(c) has obtained from the Board a certificate that the person has -

(i) provided the evidence required under paragraph (b); and

(ii) observed and complied with the provisions of this Act and the rules."

16 Subsection (2) of s 28 provides that the Board may, but is not required to, hold an inquiry as to whether a person seeking a certificate under subsection (1)(c) is of good fame and character and fit and proper to be admitted. Other provisions of that section create a right to seek review by the State Administrative Tribunal of a decision to refuse to grant a certificate under subsection (1)(c) of s 28.

17 Section 30 of the LPA provides that no person is to be admitted as a legal practitioner except by a full bench of the Supreme Court.

18 Section 35 of the LPA provides that a practice certificate is required to be held by every legal practitioner who is engaged in legal practice in the State, with some exceptions not presently relevant. The power to issue practice certificates is conferred upon the Board.

19 Section 38 of the LPA provides that the Board may refuse to issue a practice certificate if, amongst other things, a person is a "disqualified person" or if the Board is not satisfied that the applicant is a fit and proper person and "competent to practice [sic] in this State". The expression "disqualified person" is defined by s 3 of the LPA to mean:

(a) has been struck off the Roll of Practitioners or a roll kept outside this State that corresponds to the Roll of Practitioners (unless the person has been re-admitted); or

(b) is suspended, disqualified or otherwise prohibited from engaging in legal practice in this State or in any other place (whether in or outside Australia)."

20 Part 12 of the LPA deals with complaints against, and the discipline of, legal practitioners. It contains provisions which empower the Court to strike a practitioner off the Roll of Practitioners ("the Roll"). However, s 161 of the LPA, which is within Pt 12, provides that:

"161. ...

Nothing in this Part affects the jurisdiction of the Supreme Court with respect to legal practitioners."

21 It may reasonably be inferred from this section that it was the intention of the legislature to preserve the inherent jurisdiction of the Court with respect to the supervision of the conduct of legal practitioners and the Court's inherent power to determine which persons are to be accepted as practitioners of the Court, and either admitted to, or removed from, its Roll.

22 The mutual recognition legislation is a complementary scheme of legislation passed by the legislatures of each Australian jurisdiction including the Commonwealth. Part 3 of the Mutual Recognition Act 1992 (Cth) ("MRA(Cth)") establishes the mutual recognition principle. Section 17 of the MRA(Cth) defines the mutual recognition principle in the following terms:

"(1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:

(a) to be registered in the second State for the equivalent occupation; and

(b) pending such registration, to carry on the equivalent occupation in the second State.

(2) However, the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as those laws:

(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and

(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation."

23 Section 18 of the MRA(Cth) expressly provides that Pt 3 extends to occupations carried on by an individual where the individual is subject to more than one system of registration or more than one local registration authority, and provides that the Part applies in relation to each such system of registration and each such authority. The section gives the occupation of legal practitioner as a specific example of its operation, as it involves the admission of a legal practitioner by a court and the issue of a practising certificate by another body.

24 It follows, therefore, that in Western Australia, the Court is the relevant local registration authority for the purposes of admission to practice, and the Board is the relevant local registration authority for the purposes of the issue of a practice certificate.

25 Section 19 of the MRA(Cth) provides that a person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle. The section sets out the various requirements of the notice, and specifies the documents which must accompany the notice which include either the original or a copy of the instrument evidencing the person's existing registration.

26 The notice lodged by Mr Tkacz with the Court on 17 November 2006 satisfied the requirements of s 19 of the MRA(Cth).

27 Subsections (1) - (4) of s 20 of the MRA(Cth) are in the following terms:

"(1) A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.

(2) The local registration authority may grant registration on that ground and may grant renewals of such registration.

(3) Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in the first State.

(4) Continuance of registration is otherwise subject to the laws of the second State, to the extent to which those laws:

(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and

(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation."

28 Section 21 of the MRA(Cth) provides that registration must be granted within one month after the notice is lodged with the local registration authority and that when granted, registration takes effect as from the date the notice was lodged. The section further provides that the local registration authority may, subject to Pt 3 of the MRA(Cth), and within one month after the notice was lodged, postpone or refuse the grant of registration. The section provides that if the power to postpone is not exercised within the period of one month after lodgment of the notice, the person lodging the notice is entitled to registration immediately and no objection may be taken on any of the grounds on which refusal or postponement may be effected, except where fraud is involved.

29 Grounds upon which a local registration authority may postpone the grant of registration are specified by s 22(1) of the MRA(Cth). Those grounds are:

"(a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or

(b) any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or

(c) the circumstances of the person lodging the notice have materially changed since the date of the notice or the date it was lodged; or

(d) the authority decides that the occupation in which registration is sought is not an equivalent occupation."

30 Section 22 also provides that the local registration authority may not postpone the grant of registration for longer than a period of six months and that the person is entitled to registration immediately at the end of that period unless registration was refused at or before the end of that period.

31 Grounds upon which a local authority may refuse the grant of registration are specified in s 23(1) of the MRA(Cth). Those grounds are:

"(a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or

(b) any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or

(c) the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions."

32 Section 24 of the MRA(Cth) provides that a local registration authority must give the person who lodges a notice in accordance with s 19 a notice in writing of its decision to grant registration, or to postpone or refuse the grant of registration, or to impose conditions on registration.

33 Division 3 of Pt 3 of the MRA(Cth) deals with interim arrangements between the time of lodgment of a notice under s 19 with a local registration authority and the decision of that authority and essentially provides that a person is deemed to be registered during that period.

34 The MRA(Cth) was adopted for the purposes of s 51(xxxvii) of the Commonwealth Constitution ("the Constitution") within the State of Western Australia for the period 9 December 1995 to 28 February 2001, by the Mutual Recognition (Western Australia) Act 1995 (WA) ("MR(WA) 1995"). The MR(WA) 2001 continued that adoption until 28 February 2011, or such earlier date as may be fixed by the Governor of Western Australia by proclamation. No such proclamation has been made.

35 As we have observed, it is clear from the structure of the mutual recognition legislation that the Court is the relevant "local registration authority" for the purposes of admission to practice and the Board the relevant "local registration authority" for the purposes of the grant of a practice certificate. For reasons which follow, the lodgment of a notice with the Board by Mr Tkacz on 12 April 2006 did not trigger any of the provisions of the mutual recognition legislation relating to admission as a practitioner because the notice was not lodged with the relevant "local registration authority". In relation to admission to practice, the provisions of the mutual recognition legislation were not triggered until the motion for admission was lodged at the Court on 17 November 2006. As has been noted, the obligation to deal with the application lodged by Mr Tkacz within one month of lodgment would have been satisfied in this case, but for the waiver by Mr Tkacz of that obligation in order that he could take part in a formal admission ceremony scheduled to take place on 20 December 2006. Because admission ceremonies are only held by the Court once each month, in practical terms if the time requirements of the mutual recognition legislation are to be met, it will usually be necessary for applicants to be admitted on the papers, rather than by formal ceremony, unless they elect to waive insistence upon those temporal obligations in order to participate in a ceremony of admission (as Mr Tkacz did).

36 On behalf of Mr Tkacz it was first submitted that the notice which he lodged with the Board on 12 April 2006 had triggered the provisions of the mutual recognition legislation. Accordingly, as a month from that date had expired without either the Board or the Court making any decision to grant, refuse or postpone admission, it was submitted that Mr Tkacz was entitled to admission under s 21 of the MRA(Cth) without objection being taken. The difficulty with that submission is that of course the notice lodged on 12 April 2006 was lodged with the Board, not the Court. The Court is the relevant local registration authority for the purposes of admission. In order to overcome that difficulty, it was submitted on behalf of Mr Tkacz that the Board received the notice of his application on 12 April 2006 as agent for and on behalf of the Court.

37 It is clear from investigations conducted by the Court into the communications between the Court and the Board at the time of the introduction of the mutual recognition regime that the procedural arrangements, whereby applicants under the mutual recognition regime were encouraged to lodge notice of intention to apply for admission with the Board in the first instance, were put in place by agreement between the Court and the Board. However, an arrangement whereby applicants are encouraged to give notice of intent to the Board, in order that the Board can conduct enquiries into the circumstances of the applicant, does not, of itself, carry any necessary implication or connotation to the effect that the Board has been appointed as the agent of the Court for the purposes of the receipt of notices which will trigger the temporal obligations imposed under the MRA(Cth). Assuming for the purposes of argument, without deciding, that it is possible for a local registration authority to appoint an agent for the purposes of receipt of a notice under s 19 of the MRA(Cth), in the absence of express language directed to that end, we would be slow to infer or imply such a conclusion, given the significant consequences it would have under the MRA(Cth). One of those consequences would be that the Court would be obliged to deal with an application for admission within a month of its receipt by the Board, in a circumstance in which the Court may have no knowledge of the receipt of that application. There is no express appointment of the Board as the agent of the Court for the purposes of receipt of notice under the MRA(Cth), nor can such an appointment be inferred merely from the agreed administrative arrangements. Accordingly, it cannot be said that the Board was the agent of the Court for the purposes of receipt of the notice lodged with the Board on 12 April 2006, with the consequence that the relevant notice triggering the application of the mutual recognition scheme was received by the Court on 17 November 2006, after which the Court had one month within which to determine whether it would grant, refuse or postpone determination of the application. It made that determination within that period.

38 On behalf of Mr Tkacz it was also submitted that because he had been admitted in New South Wales after making full disclosure of his prior conviction and the Legal Practice Admission Board of that State having determined that he was nevertheless of good character and a fit and proper person to be admitted in New South Wales and the Supreme Court of New South Wales having admitted him on that basis, there was no ground upon which the application for admission could be refused or postponed. It was submitted that the MRA(Cth) provided an exhaustive code of the grounds upon which registration (or in this case, admission) could be refused or postponed, and there were no such grounds in this case.

39 It is clear from the factual circumstances we have set out above that none of the grounds specified by s 22 of the MRA(Cth) upon which an application may be postponed, or the grounds specified by s 23 of the MRA(Cth) upon which an application may be refused, apply in this case. None of the statements made by Mr Tkacz in the notice lodged by him pursuant to s 19 of the MRA(Cth) are materially false or misleading. None of the documents or information required to be supplied in support of the notice were materially false or misleading. His circumstances have not materially changed since the date of the notice or the date it was lodged and plainly there is no basis upon which the Court could decide that the occupation in which registration is sought by him, is not an equivalent occupation to that to which he has been admitted in New South Wales.

40 The Board submitted that the specific provisions of the mutual recognition legislation should be read and construed subject to the inherent power of the Court with respect to the supervision of the conduct of legal practitioners, which extended to an inherent jurisdiction to control the admission and removal of legal practitioners from the Roll. The Board therefore submitted that it is open to the Court to refuse to admit Mr Tkacz if it is not satisfied that he is a person of good character and fit and proper to be admitted to practice, even though such a ground is not specified as a ground upon which registration may be refused under s 23 of the MRA(Cth).

41 The Board further submitted that if the MRA(Cth) were to be construed otherwise, it would exceed the legislative power of the Commonwealth because it would deprive the Supreme Courts of the States of an essential aspect of their character as courts, which is incompatible with their investiture with the judicial power of the Commonwealth under Ch III of the Constitution.

42 The latter aspect of the Board's submission may be shortly disposed of. A convenient summary of the recent and leading cases dealing with the circumstances in which the judicial integrity of a supreme court of a state might be so compromised as to render it an inappropriate repository of the judicial power of the Commonwealth under Ch III of the Constitution is to be found in the recent decision of the Court of Appeal in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2007] WASCA 49. It is not necessary to re-state the principles enunciated by the Court in that case. However, when regard is had to those principles, it is clear, in our view, that it could not be said that a legislative regime which requires a supreme court of a state to recognise and give effect to a determination made by a supreme court of another state with respect to the suitability of an applicant for admission to practice as a legal practitioner so compromises the judicial integrity of the former court as to render it an inappropriate repository of Commonwealth judicial power. To the contrary, such a legislative regime would be entirely consistent with s 118 of the Commonwealth Constitution which provides that:

"Full faith and credit shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State."

43 It was submitted by the Board that because the MRA(Cth) is a Commonwealth Act, when the Court sits to determine applications for admission made under the MRA(Cth) as adopted by the State Act, it is exercising the judicial power of the Commonwealth and can therefore only do so in accordance with Ch III of the Constitution. Assuming (without deciding) that proposition is correct, in our view, it leads to no different conclusion as there is nothing in the character of a Ch III court which would preclude it from accepting as practitioners, persons who have been admitted to practice by the superior court of a State or Territory; indeed, that has been the customary practice of the High Court.

44 However, the fundamental issue posed by the competing submissions to which we have referred is more problematic. On the one hand, the clear and obvious purpose of the mutual recognition legislation is to create a national scheme under which the capacity of an occupational registering authority to delay or refuse the registration in that jurisdiction of a person who is registered in any other jurisdiction is severely curtailed, so that registration in one jurisdiction leads virtually automatically to registration in each other jurisdiction in which it is sought. On the other hand, the inherent jurisdiction of the superior courts to determine who shall be recognised as practitioners of those courts, and to regulate and control their conduct, goes back to antiquity, and has long been accepted to be a fundamental facet of a court's capacity to administer justice.

45 However, a more detailed consideration of the MRA(Cth) and the legislation of this State relating to the admission of legal practitioners, read in the context of the inherent jurisdiction of the Court, reveals that there is no necessary tension between these objectives, and indeed, that the MRA(Cth) has been crafted in such a way as to give effect to the mutual recognition principle whilst preserving the capacity of a superior court to itself determine which persons are to be admitted as its practitioners.

46 As long ago as 1830, in In Re Justices of the Court of Common Pleas at Antigua (1830) 1 Knapp 267, the Privy Council held at 268 that:

"In the colonies there are no Inns of Court, but it is essential for the due administration of justice that some persons should have authority to determine, who are fit persons to practice as advocates and attornies there. Now advocates and attornies have always been admitted in the Colonial Courts by the Judges, and the Judges only."

47 More recently, the High Court was required to construe a statutory provision which, on its face, would have restricted the inherent jurisdiction of the Supreme Court of New South Wales to determine who should be admitted as a practitioner. Under the Legal Practitioners Act 1898 (NSW) ("LPA 1898"), a board was created to determine which persons were properly qualified to be admitted as barristers. Section 10 of the LPA 1898 provided:

"10. Every candidate whom the Board shall approve as a fit and proper person to be made a barrister shall be admitted as a barrister by the Court on any day appointed for that purpose."

48 In In Re Davis [1947] HCA 53; (1947) 75 CLR 409, a majority of the High Court held that notwithstanding the use of the mandatory expression "shall" to apply to "every candidate" approved by the Board, the Court retained a residual discretion to determine whether a person approved by the Board would be admitted to practice. In that case, the appellant, Davis, had been approved by the Board and admitted by the Court. But he had failed to disclose that some years earlier he had been convicted of breaking and entering a dwelling house and stealing articles of jewellery and clothing.

"Apart from the word 'shall' there is nothing in the Legal Practitioners Act which suggests an imperative and absolute duty upon the Court to exercise its authority to admit persons as barristers. Indeed the interposition of the Court would be merely ministerial if it were under an absolute duty to admit a person as a barrister upon approval of the Board. And the Court would be without jurisdiction to refuse admission to any person approved by the Board though information was before it that such person, though unknown to the Board, was a lunatic or a thief or otherwise disreputable or unfit to belong to the profession of a barrister.

In my opinion however, the faculty or power is reposed in the Court in the public interest. It must have the approval of the Board but upon the Court is placed, in the end, the duty and the responsibility of admitting persons as barristers. The Court has power in reserve, seldom required, having regard to the functions of the Board, but still necessary, as this case well illustrates.

...

No express power to remove barristers from the roll has been brought to our attention, other than the limited power contained in cl.X. of the Charter of Justice, but I would add that the power is inherent in the Court. Clearly, under various powers, the Court could make rules regulating the matter ... And it is essential for the due administration of justice, as was said in In re the Justices of the Court of Common Pleas at Antigua that the Court should have that authority. The power of removal or suspension is incidental to that of admitting to the roll of barristers." (footnote omitted)

"The Bar is no ordinary profession or occupation. The duties and privileges of advocacy are such that, for their proper exercise and effective performance, counsel must command the personal confidence, not only of lay and professional clients, but of other members of the Bar and of judges. (at 420)

...

The authority of the Supreme Court to admit persons to practise as counsel comes from cl X of the Charter of Justice. Although so much of the clause as relates to the removal of barristers from their station on reasonable cause is expressed in reference to practitioners from Great Britain and Ireland only, there has never been any doubt that the Court has a general authority to suspend or remove barristers from the roll (cf In re the Justices of the Court of Common Pleas at Antigua). (at 423) [footnote omitted]

[And in response to the submission that s 10 required the Court to admit a person approved by the Board]

...

This contention, in my opinion, gives too literal a construction of s 10. It would be absurd to lay hold of the word 'shall' and interpret the provision as intending to place upon the Court the imperative duty of admitting to the Bar, without regard to any other condition, a person who showed that the Board approved him as a fit and proper person. To take an imaginary instance, suppose that, after the Board had certified its approval of a candidate for admission, he was convicted of felony, found to be lunatic, ascertained to be an alien enemy, or ordered to be deported as a prohibited immigrant. Section 10 can scarcely be understood as meaning that these disqualifications, for such they would otherwise be considered, are to be disregarded. The provision is evidently based on the assumed condition that there is no disqualifying circumstance and nothing to invalidate the certification by the Board of its approval ... (at 424)

...

But I am clearly of the opinion that to treat s 10 as it now stands as imposing an imperative duty upon the Court without regard to any other condition to admit a candidate to the Bar once he shows the Board's approval, produces such absurd and inconvenient consequences and is so improbable an intention that some other construction should be adopted, if one is possible." (at 425)

51 McTiernan J was of the view that the long recognised jurisdiction of the Court to admit and remove its practitioners could only be taken away by express words or necessary implication. He did not consider that s 10 of the LPA 1898 had either of those qualities. Williams J agreed that s 10 of the LPA 1898, properly construed, was directory rather than mandatory. Latham CJ dissented.

52 The importance of the Court's jurisdiction to admit and remove practitioners from the roll was again emphasised by the High Court in the oft cited case of Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279.

"In dealing with the question whether a man should remain on the roll of barristers the special if not singular position of counsel should be borne steadily in mind. If counsel is adequately to perform his functions and serve the interests of his clients, he should be able to command the confidence and respect of the court, of his fellow counsel and of his professional and lay clients."

"It has been said before, and in this case the Chief Justice of the Supreme Court has said again, that the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client's confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar.

Yet it cannot be that every proof which he may give of human frailty so disqualifies him. The ends which he has to serve are lofty indeed, but it is with men and not with paragons that he is required to pursue them. It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task."

55 More recently, in Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461, Brennan J held at 495 - 496:

"The jurisdiction of the Supreme Courts of each of the Australian States extends to the admission, disciplining and disbarring of barristers and has done so from colonial times: In re Justices of the Court of Common Pleas at Antigua; In re Spensley; In re Davis; Ziems v Prothonotary of the Supreme Court of N.S.W. That is an important jurisdiction affecting the organization of the court itself, for the proper functioning of a court depends on the proper discharge of their duties by the advocates who are entitled to appear before it." (footnotes omitted)

56 More recently again, in Re Petroulias [2004] QCA 261; [2005] 1 Qd R 643, de Jersey CJ referred to the relationship between the MRA(Cth) and the inherent power of the Court relating to the admission and removal of practitioners in the following terms at 653 [35]:

"If the Court of Appeal had admitted Mr Petroulias, by registering him as a solicitor in Queensland under the Act, then that Court would retain the inherent capacity to set aside that registration if effected irregularly, as where premised on a circumstance shown not to have existed. This is especially so bearing in mind the strength of the inherent jurisdiction of the court in relation to the legal profession, which is a pervasive jurisdiction not readily diminished or displaced ..."

57 Thus, the fundamental characteristic and importance of the supervisory jurisdiction of the Court with respect to its practitioners has been consistently recognised in previous cases. The Australian cases accept that, as the courts of this country are creatures of statute, it would be open to the legislature to restrict or curtail that supervisory jurisdiction or to qualify or impose conditions upon its exercise. However, the cases also show that a legislative intention to that effect will not be found in the absence of express words or necessary implication.

The Statutory Provisions Relating to Admission to Practice in Western Australia

58 The legislative provisions governing admission to legal practice in Western Australia have recognised the Supreme Court's power to refuse to admit a person to practice even though that person possesses all the requisite qualifications and experience, since at least 1861. Earlier sections of the Supreme Court Ordinance 1861 (WA) set out the qualifications that had to be certified to the Court in order to gain admission. Section 19 of the Ordinance then provided that:

"[T]he Supreme Court may, notwithstanding the Production of the above mentioned Requisites, upon good Cause assigned for so doing, still refuse to admit such Person to the Bar of the said Supreme Court or to practice therein as shall seem to the said Supreme Court improper to be admitted ..."

59 And as we have observed, the LPA follows the same general scheme. Section 27 of the LPA sets out the requirements, in terms of educational qualifications and experience, that must be met prior to admission. Section 28 then provides that a person who has those qualifications, has provided to the Board such evidence as the Board may require showing that the person is of good fame and character and fit and proper to be admitted and has obtained a certificate to that effect from the Board "may" be admitted by the Court.

60 It can readily be inferred that the draftsperson of the LPA had the decision of the High Court in In Re Davis (supra) in mind, so that the word "may" was deliberately used in order to give effect to, and reflect, that decision. Thus, consistently with In Re Davis (supra) and from the natural and ordinary meaning of the language used in s 28 of the LPA, it is clear that even if a person has obtained all the qualifications and experience specified in s 27 of the LPA; has satisfied the Board that he or she is of good fame and character and fit and proper to be admitted; and has obtained a certificate from the Board to that effect, the Court nevertheless retains a power to refuse to admit that person. Obviously that power would only be exercised for good cause, and after procedural fairness had been afforded.

61 It is now necessary to consider the MRA(Cth) to ascertain whether that legislation removes or curtails that residual power in the case of applicants moving for admission under the MRA(Cth) as adopted by the Western Australian Act. As the authorities to which we have referred establish, the MRA(Cth) will only have that effect if it contains express words, or a necessary implication which compels that conclusion.

The Mutual Recognition Act 1992 (Cth)

62 We have set out s 17 of the MRA(Cth) above. The qualification to the mutual recognition principle set out in subsection (2) of that section is of particular significance.

63 The LPA is a law that regulates the manner of carrying on the occupation of legal practitioner in the State of Western Australia. It recognises the power of the Court to refuse to admit a person to the practice of that occupation even though he or she may have all the specified qualifications or experience necessary to fit them to carry on that occupation. It is a law which applies equally to all persons carrying on or seeking to carry on the occupation of legal practitioner in Western Australia. Accordingly, the clear and express effect of s 17(2) of the MRA(Cth) is to provide that the mutual recognition principle does not affect the operation of that aspect of the LPA.

64 Section 20 of the MRA(Cth) should be read and construed consistently with the clear purpose and effect of s 17(2). So, where s 20(1) refers to a law of the second State expressly providing that "registration in the first State is a sufficient ground of entitlement to registration" it should be taken to be a reference to a sufficiency of the qualifications or experience necessary to secure registration. Moreover, the proposition that s 20(1) was not intended to compel registration in the second State contrary to the exception to the mutual recognition principle expressly established by s 17(2) is reinforced by s 20(2) of the MRA(Cth), which provides:

"(2) The local registration authority may grant registration on that ground and may grant renewals of such registration."

65 The use of the word "may" rather than the imperative "shall" is consistent with the approach reflected in the High Court's decision in In Re Davis (supra) and with the scheme of provisions such as s 28 of the LPA. That conclusion is further reinforced by s 20(4) of the MRA(Cth) which provides:

"(4) Continuance of registration is otherwise subject to the laws of the second State, to the extent to which those laws:

(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and

(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation."

66 So, the language of s 17(2) of the MRA(Cth) is replicated in s 20(4) of that Act, relating to continuance of registration. The long-standing capacity of the superior courts to determine that only the persons with the requisite personal qualities of character be admitted to, or remain on, the Roll would not easily fit within the description of "some qualification or experience". Accordingly, that capacity of the superior courts, including the Supreme Court of Western Australia, remains unaffected by the mutual recognition legislation.

67 Nor is any other conclusion supported by the language of s 22 and s 23 of the MRA(Cth) which specify grounds upon which registration "may" be postponed or refused (respectively). While the use of the word "may" is obviously intended to convey the existence of a discretion to postpone or refuse, rather than a duty to postpone or refuse, if the legislature had intended that the specified grounds be exhaustive of those discretionary powers, one would have expected the word "if" in each of those sections to be followed by the phrase "and only if". The maxim of statutory interpretation known by the Latin expression "expressio unius est exclusio alterius" (the expression of one excludes the others) is not of sufficient strength to compel a different conclusion in this context.

68 Any other construction would give to the mutual recognition legislation the perverse effect referred to by each of Starke and Dixon JJ in In Re Davis (supra) in that it would require the court of one state to admit to practice any person who had been admitted to practice in any other state or territory, however long ago, notwithstanding that the Court called upon to admit was aware that the person was a lunatic, or a serious criminal or, for some other reason, totally unfit to practise law. The intention to procure such a perverse result should not be attributed to the legislature and is certainly not compelled by either express words or a necessary implication found in the MRA(Cth).

69 For these reasons, in our opinion, the established and long recognised power of the Court to determine whether a person should be admitted to its Roll, irrespective of whether or not they possess the requisite educational qualifications and experience, is unaffected by the mutual recognition legislation, and applies equally to applicants for admission under that legislation as it does to applicants for admission who rely only on the provisions of the LPA.

70 For the reasons given above, notwithstanding that Mr Tkacz has been admitted to practice in New South Wales and relied upon the mutual recognition legislation for admission in this State, the Court was nevertheless required to determine whether it should exercise its discretion to admit him to practice, having regard to his conviction for a corrupt act in the performance of a public office. Counsel appearing for the Board properly acknowledged that there was nothing other than that conviction which would cast any doubt whatsoever upon the character of Mr Tkacz or his suitability to perform the duties and responsibilities imposed upon practitioners of this Court.

71 We approach this question cognisant of the observation of Kitto J in Ziems (supra) to the effect that it will not always be easy to determine on which side of the relevant dividing line a particular conviction falls in any case. Of course, much will depend upon the facts and circumstances of the particular case, including the events and conduct giving rise to the conviction. In this case, the circumstances we set out below caused us to conclude that Mr Tkacz should nevertheless be admitted to practice.

72 First, the events occurred many years ago, during 1997. They occurred six years prior to the conviction and well before Mr Tkacz had commenced his legal studies. It is not, therefore, one of those cases in which a person with legal training, by their conduct showed a disrespect for the law which was antithetical to that training. At the time of the events giving rise to his conviction, Mr Tkacz had not embarked upon his legal training.

73 Second, the events giving rise to the conviction of Mr Tkacz do not reveal a flagrant disregard for the law or a sustained course of dishonesty. Rather, they suggest a failure to properly safeguard the interests of his employer and to distinguish between those interests and his own.

74 Third, the amount involved in the offence was not great; the detriment suffered by his employer as a result of the use of the telephones was in the vicinity of $700.

75 Fourth, Mr Tkacz received no personal benefit from the events giving rise to his conviction.

76 Fifth, the fine of $750 imposed upon Mr Tkacz as a result of his conviction suggests that the trial Judge did not take a particularly serious view of the misconduct giving rise to the conviction.

77 We are only too well aware of the paramount need to insist upon the highest standards of character and propriety in those who are given the powers and responsibilities that follow admission to legal practice. However, having regard to the particular circumstances that gave rise to the conviction of Mr Tkacz, and in particular the aspects of those circumstances we have set out above, in our opinion, the admission of Mr Tkacz was consistent with the maintenance of those standards, notwithstanding his prior conviction.

78 It was for these reasons that we announced, at the conclusion of the hearing, that Mr Tkacz be admitted to practice and he was duly admitted at the next convenient admission ceremony.