Saunders v Legal Profession Admission Board

The role of the Law Society

1. In June 2015, consent orders were made in these proceedings by a Registrar, including an order said to have been made pursuant to s 30(1)(b) of the 2004 Act, that the Law Society "be granted leave to appear in these proceedings as amicus curiae".
2. That was a somewhat curious order given that s 30 gave the Law Society the right both to make representations in writing to the Admission Board, in relation to Mr Saunders' application and to be represented and heard at this appeal. Its right to be heard on an application such as this now arises under s 21 of the Legal Profession Uniform Law Application Act 2014 (NSW). That was a right which it did not pursue in these proceedings.
3. Instead, the Law Society pursued the role of amicus, a role undertaken by the Attorney-General in Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239, which concerned an application made under the predecessor of the 2004 Act, the Legal Profession Act 1987 (NSW).
4. In its written submissions, the Law Society also referred to Johnson J's observations in Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338, to explain the role it sought to perform, in order to assist the Court in these proceedings. That case also concerned an application under the 1987 Act, in which the Board had, however, appeared. It did not, however, seek to participate in the proceedings as an ordinary litigant with a vested interest. Johnson J considered the Board's role, observing: "21 In circumstances where the Plaintiff did not join the Council of the Bar Association or the Council of the Law Society and neither Council has sought to be added as a party to the proceedings, it is, in my view, appropriate for the Board to fulfil the function exercised by counsel appearing for it on this appeal. It is necessary that evidence adduced by the Plaintiff bearing upon her good fame and character be tested by cross-examination, and that other evidence bearing upon the same issue be adduced before this Court to enable it to fulfil the statutory function under a s.14 appeal. 22 If the Board had not taken the approach which it has, I would, in any event, have requested the Council of the Bar Association or the Council of the Law Society to participate in the hearing or, alternatively, requested the Attorney-General to appoint counsel to act as amicus curiae on the hearing of the appeal. In the result, this is the function which Ms Anderson has fulfilled on behalf of the Board at the hearing of the appeal. The involvement of the Board at the hearing has assisted the Court in the determination of the matters falling for determination which, as will be seen, involve the public interest and the protection of the public."
5. At the hearing of this appeal, the Law Society confirmed that unlike the position taken by the Law Society of the Northern Territory, which in 2011 had opposed Mr Saunders' application for admission, it did not. It rather proposed to assist the Court by testing his evidence by cross-examination and by advancing submissions.
6. The course which the Law Society pursued at the hearing did not involve cross-examination of any of those who gave affidavit evidence to support Mr Saunders' appeal. It also confined its cross-examination of Mr Saunders to the circumstances in which he came to offend in 2006-2008; how that offending came to light; the sentencing proceedings in 2009; and the proceedings in the Northern Territory Supreme Court in 2011. His evidence as to subsequent events was unchallenged.
7. The result of the approach which the Society pursued was that during the course of Mr Saunders' vigorous cross-examination, I asked it to confirm that it was not seeking to exercise the statutory right which it had to be heard on his application.
8. There was little objection to this cross-examination, except when it was factually incorrect, or invited speculation about matters clearly not within Mr Saunders' knowledge. There was an objection, for example, when it was put to him that it was unlikely that Centrelink would not have recorded information he had provided to it, on its computers and when Mr Saunders was asked whether evidence he had given in the Northern Territory proceedings was credible, a question which was withdrawn after objection.
9. It was put to Mr Saunders, without objection, that his evidence in both the 2011 proceedings and in these proceedings was false. For example, as to having on three occasions in 2006, while at Centrelink, requested that a two weekly claim form to be sent to him in relation to his Austudy benefits, a system which he had operated under in past years while receiving Centrelink Youth benefits, after he had been unable to access the then new Centrelink computerised claim system it had been suggested he could use. The effect of this cross-examination was, of course, to suggest that Mr Saunders had perjured himself, a serious allegation for which it might be expected there to be some evidentiary foundation, if it was to be advanced.
10. Section 41 of the Evidence Act 1995 (NSW) requires the Court to disallow certain questions, including those which are misleading or confusing, or unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive.
11. Accordingly, I did not permit a question which put to Mr Saunders that evidence which he had given as to circumstances in which counsel who had assisted him pro bono in relation to the Northern Territory appeal had appeared before the Northern Territory Supreme Court as amicus was inconsistent with contemporaneous documents, which all very clearly indicated that he had appeared as Mr Saunders' Counsel. That was because Riley CJ's judgment itself recorded that counsel as having appeared amicus curiae and so the question was clearly based on a false premise.
12. It was then that I intervened to enquire as to the role the Society which was pursuing. The Law Society confirmed that despite its approach to his cross-examination, it still did not seek to exercise its statutory right to be heard on Mr Saunders' application.
13. The Society's final position was that it neither supported, nor opposed Mr Saunders' application, but observed that the decision which fell to the Court to make was a difficult one. It was submitted that the factors which weighed against Mr Saunders were his conviction and the way that he had presented his evidence in the 2011 proceedings. Riley CJ had given Mr Saunders the benefit of the doubt, it was submitted, as to certain matters, but had been critical of him in relation to others. It was also submitted to be open to me to come to a different view to that reached by Riley CJ, about Mr Saunders veracity. Why I should do so, is not apparent.
14. The Law Society also acknowledged, however, that the unchallenged evidence Mr Saunders and others gave as to his rehabilitation, they being people who had known him for considerable periods of time, supported his application. There had been no further offending or conduct of any other dishonest nature. That evidence was submitted to support the view that Mr Saunders has redeemed himself and that he was remorseful for his conduct, contrary to the position in 2011, when Riley CJ considered that he did not appreciate the seriousness of his offending and that he was concerned about Mr Saunders' serious attempts to deflect blame and justify what he had done.
15. On the evidence in these proceedings, however, it was suggested that Mr Saunders might now have rehabilitated himself to the degree necessary.

Mr Saunders' credibility

1. In the light of this somewhat curious approach to Mr Saunders' evidence, it is convenient immediately to deal with his credibility. I accept Mr Saunders to have been a witness of truth.
2. The sentencing magistrate accepted, on the agreed facts then led, that Mr Saunders always intended to repay the overpayments, but considered that using the Centrelink system to get a short term loan to get him over financial difficulty, involved offences which had to be adequately punished. The result was that without passing sentence, Mr Saunders was released on giving security by way of recognizance in the sum of $2,000 to be of good behaviour.
3. True it is that Riley CJ was critical of Mr Saunders, criticism which he accepts as having been warranted, but he did not find him to have been untruthful in his evidence. There is simply no basis for taking a different view in these proceedings.
4. What was submitted in these proceedings by the Law Society to have involved the Chief Justice giving him "the benefit of the doubt" in the 2011 proceedings about evidence he had given as to difficulties he had experienced in accessing a new computerised Centrelink reporting system and its failure to reinstate a manual reporting system which he had previously used for his Youth Benefits, despite a number of requests, reflected findings reached on the balance of probabilities in Mr Saunders' favour, on the evidence he had given, albeit his Honour said, with some hesitation.
5. There was nothing in Mr Saunders' evidence in these proceedings, which caused me to question the veracity of his evidence about these or other matters which he dealt with in his affidavit evidence, or orally.
6. Plainly his mistakes have had very painful consequences for him. His cross-examination in the Northern Territory proceedings, both by the counsel appearing for the Law Society and the Chief Justice, who was highly critical of his offending and lack of appreciation of its seriousness, was plainly very distressing, as the transcript of those proceedings reveals.
7. That he was being untruthful in the answers which he then gave, cannot be accepted. Evidence was led in these proceedings as to the efforts that he went to, to prove what he said he had done, when dealing with Centrelink. The evidence established that it was he who confessed his offending to Centrelink. It was in order to corroborate his explanation of the circumstances in which he came not to persist with his endeavours to report his earnings, for some 18 months, that he made FOI applications to Centrelink. The documents he was given access to reveal what he had done in order to obtain his Austudy benefits and later, to reveal his offending and repay what he owed.
8. There were other records which Centrelink kept, which might have provided information to corroborate his evidence, that the records he was given access to, did not provide a complete account of his attendances on Centrelink. The refusal to give him access to those records, kept by Centrelink to record when and by whom customer files are accessed by staff, was explained to be because it could prejudice the effectiveness of conducting tests and audits and the efficient conduct of Centrelink operations, as they would reveal the staff who had accessed his records.
9. Those reasons are consistent with these records containing information which could have shed light on Mr Saunders' explanation of the circumstances in which he said he had given up his pursuit of reporting his earnings to Centrelink. That, as Mr Saunders' acknowledged, would not excuse his own offending, which he accepted, as Riley CJ had found, he was entirely responsible for, having involved not only acts of omission. Nevertheless, it was an account which was relevant to his explanation of how it was that he came to offend as he did.
10. I have no reason to doubt the evidence which he gave about these, or any other matters. Social security fraud which Centrelink has to guard against is unarguably notorious. Difficulties which people who are not involved in such fraud experience in communicating with Centrelink are also notorious. There was nothing implausible in the evidence which Mr Saunders gave about the circumstances in which he came to offend as he did. Nor did Mr Saunders err in giving an explanation of those events in these proceedings, which might lead to the conclusion that he is not now a person of good fame and character.

The scheme of the 2014 Act

1. Before the Court can admit an individual such as Mr Saunders to practice, the Board, the relevant "designated local regulatory authority" (see s 6 of the 2014 Act and s 11 of the Legal Profession Uniform Law Application Act 2014), has to provide the Court with a compliance certificate (s 16(1)). Section 16(3) permits "any person" to object to such an admission, in accordance with the applicable rules of court. In Mr Saunders' case, there is no such objection.
2. Prerequisites for the issue of a compliance certificate are now specified in s 17 of the 2014 Act, which provides: "17 Prerequisites for compliance certificates (1) The prerequisites for the issue of a compliance certificate in respect of a person are that he or she - (a) has attained the academic qualifications specified under the Admission Rules for the purposes of this section (the specified academic qualifications prerequisite); and (b) has satisfactorily completed the practical legal training requirements specified in the Admission Rules for the purposes of this section (the specified practical legal training prerequisite); and (c) is a fit and proper person to be admitted to the Australian legal profession. (2) In considering whether a person is a fit and proper person to be admitted to the Australian legal profession - (a) the designated local regulatory authority may have regard to any matter relevant to the person's eligibility or suitability for admission, however the matter comes to its attention; and (b) the designated local regulatory authority must have regard to the matters specified in the Admission Rules for the purposes of this section"
3. There is no issue that Mr Saunders has the necessary academic qualifications and practical legal training. The Board considered, however, that he was not a fit and proper person, (then a consideration under s 25 of the 2004 Act) and so refused to issue him with a compliance certificate. Section 26 now grants a right of appeal to this Court from such a refusal. On such an appeal the Court may make any order it considers appropriate and if the order is granted, may include a direction that the order has the same effect as a compliance certificate provided to the Court by the Board (ss 26(3) and (4)).
4. Under s 44(4) of the 2014 Act an application for a practicing certificate "cannot be made in this jurisdiction unless the applicant reasonably intends that this jurisdiction will be his or her principal place of practice during the currency of the certificate or renewal applied for." On the evidence there is no question that Mr Saunders has that intention.
5. The appeal must be conducted by way of a rehearing. Fresh evidence or evidence in addition to, or in substitution for, the evidence before the Board may be led (s 28).
6. It follows that Mr Saunders does not have to establish, on this appeal, that the Board erred in the conclusions which it reached in 2014, in finding that he was not a fit and proper person. Nevertheless, it is relevant that neither he nor the Law Society urged the view that the Court should approach the question of whether Mr Saunders is now a fit and proper person to be admitted to practice in this State, by considering, as the Board did, whether there had been a sufficient passage of time for his good fame and character to have been re-established, since his 2009 offending.
7. In considering the operation of the 2014 Act, it is important to bear in mind its objectives, disclosed in s 3 as follows: "3 Objectives The objectives of this Law are to promote the administration of justice and an efficient and effective Australian legal profession, by - (a) providing and promoting interjurisdictional consistency in the law applying to the Australian legal profession; and (b) ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and (c) enhancing the protection of clients of law practices and the protection of the public generally; and (d) empowering clients of law practices to make informed choices about the services they access and the costs involved; and (e) promoting regulation of the legal profession that is efficient, effective, targeted and proportionate; and (f) providing a co-regulatory framework within which an appropriate level of independence of the legal profession from the executive arm of government is maintained."
8. As discussed in Wentworth v NSW Bar Association at 250-251, proceedings concerning admission such as this, are not ordinary legal proceedings, concerned as they are with the right to practise as a lawyer in the courts. In such proceedings the Court must be concerned to ensure, so far as possible, that the public is protected (see also Re B (1981) 2 NSWLR 372, at p 380).
9. Further, as Johnson J explained in Jackson: "24 The exercise of the power of the Supreme Court on appeal under s.14 of the 1987 Act to admit or not admit a person as a legal practitioner does not involve punishment, but a determination whether the Court is justified in holding out the person as a fit and proper person to be entrusted with the duties and responsibilities of a legal practitioner: A Solicitor v Council of the Law Society of NSW at 264 [12]. 25 The jurisdiction of the Court to admit legal practitioners, and to discipline them once admitted, is exercisable in the public interest and for the protection of the public: Gersten v Law Society of NSW (2002) 56 NSWLR 16 at 24 [53]. 26 Matters relevant to a person's fitness for admission include matters which might, as a matter of ordinary experience, put the Court or any interested person on notice that further enquiry as to the applicant's fitness to practice may be prudent: Skerritt v Legal Practice Board of WA [2004] WASCA 28 at [48]."
10. The Legal Profession Uniform Admission Rules 2015 (NSW) now deal with the matters which must be taken into account by the Board, when considering the matters specified in s 17. Rule 10 provides: "10 Determining whether someone is a fit and proper person (1) For the purposes of section 17 (2) (b) of the Uniform Law, the following matters are specified as matters to which the Board must have regard: (a) any statutory declaration as to the person's character, referred to in rule 16, (b) any disclosure statement made by the person under rule 17, (c) any police report provided under rule 18, (d) any student conduct report provided under rule 19, (e) any certificate of good standing provided under rule 20, (f) whether the person is currently of good fame and character, (g) whether the person is or has been a bankrupt or subject to an arrangement under Part 10 of the Bankruptcy Act or has been an officer of a corporation that has been wound up in insolvency or under external administration, (h) whether the person has been found guilty of an offence including a spent offence in Australia or in a foreign country, and if so: (i) the nature of the offence, and (ii) how long ago the offence was committed, and (iii) the person's age when the offence was committed, (i) whether the person has been the subject of any disciplinary action, howsoever expressed, in any profession or occupation in Australia or in a foreign country, (j) whether the person has been the subject of disciplinary action, howsoever expressed, in any profession or occupation that involved a finding adverse to the person, (k) whether the person is currently unable satisfactorily to carry out the inherent requirements of practice as an Australian legal practitioner, (l) whether the person has a sufficient knowledge of written and spoken English to engage in legal practice in this jurisdiction. (2) The Board may require a person to: (a) take an examination, and (b) obtain a result in that examination, specified by the Board for the purposes of subrule (1) (l)."
11. At the time of the Board's consideration of Mr Saunders' application, it was s 9 of the 2004 Act which required the Board to consider "suitability matters" specified in s 9. Both that section and r 10 are concerned, amongst other things, with questions of an applicant's good fame and character and prior offending.
12. In resolving what here arises for determination, it is thus important to bear in mind that r (10)(1)(f) requires consideration to be given to whether a person is currently of good fame and character. That statutory formulation plainly contemplates the possibility of change. On the one hand, it permits of the possibility that an applicant may no longer be of good fame and character, although they were in the past and on the other, that while in the past not of good fame and character, they may currently have those attributes.
13. It follows that the assessment of an applicant's good fame and character must be made on the evidence as to the current position, although, of course, light on that position can be shed by events which have occurred in the past.
14. In Jackson, Johnson J discussed the meaning of the phrase, "good fame and character" a phrase used both in the 2014 Act and in predecessor legislative schemes. The phrase is also not defined in the 2014 Act. His Honour said, at [51] - [56]: "51 The phrase "good fame and character" in ss.11-12 of the 1987 Act must be examined in the context of a statute concerned with the admission of candidates as member of the legal profession. A person may be of good fame (good reputation amongst those who then knew him or her), but intrinsic character is a different matter: In Re Davis (1947) 75 CLR 409 at 416 (Latham CJ). The phrase "good fame and character" describes the test of ethical fitness for admission to the legal profession: In Re Davis at 420 (Dixon J). 52 The distinction between fame (or reputation) and character was emphasised by Dixon J in In Re Davis at 426: "The second contention depends in part on the facts of the case and in part upon an argument that whether a man is of good fame and character is a question of his general reputation and not of his moral standards or qualities. This latter argument is quite wrong and comes from a confusion between the rule of criminal evidence allowing an accused to prove his 'good character' as part of his defence, and the question whether a man is fit to enter one of the four traditional professions. As to the facts, I hope that I have stated them in a way which brings out many considerations undeniably favourable to the appellant. He has shown industry, perseverance and courage amidst the most adverse circumstances, and has overcome many disadvantages and obstacles encountered particularly in his early years. His mental breakdown and even his descent into criminality will evoke much human sympathy. It is always so upon moral questions, particularly when a man, whose conduct or actions have been in many respects praiseworthy, mars his life by a crime. But, though concern for an individual who is overtaken by the consequences of past wrongdoing is a very proper human feeling, it is no reason whatever for impairing in his interests the standards of a profession which plays so indispensable a part in the administration of justice. … But a prerequisite, in any case, would be a complete realization by the party concerned of his obligation of candour to the court in which he desired to serve as an agent of justice. The fulfilment of that obligation of candour with its attendant risks proved too painful for the appellant, and when he applied to the Board for his certificate he withheld the fact that he had been convicted." 53 In Melbourne v The Queen (1999) 198 CLR 1, McHugh J contrasted character and reputation at 15 [33]: "In its strict sense, character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called 'disposition - which is something more intrinsic to the individual in question.' [Preliminary paper 27, Evidence Law: Character and Credibility (1997), par 99] It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person [ Plato Films Ltd v Speidel [1961] AC 1090 at 1132, per Lord Denning ] ." 54 In Melbourne, Gummow J said at 24 [64]: "In the law, the notion of 'character' takes varying significance and shades of meaning from particular fields of discourse and the particular fact in issue. It may be said that 'character', that which marks out an individual, may not correspond with the reputation attributed to that person. However, as will appear, the law does not always clearly distinguish between the two, nor indicate the probative force to be attributed to whichever of them is to be established as a fact in issue, nor specify the evidentiary means, including permissible inference, by which that fact in issue may be proved." 55 Later in Melbourne, Gummow J at 25 [66] distinguished the use of the term "character" with respect to admission to a profession with the term as used in the criminal law and the law of defamation: "The issue in a proceeding may be whether an individual has the good character required for admission to pursue a particular profession or calling. Here the concern is not with disposition to perform particular acts with a requisite intention. Nor is the question simply one of the opinion others may have of the individual in question. In Ex parte Tziniolis ; Re The Medical Practitioners Act [(1966) 67 SR(NSW) 448 at 475-476] , Holmes JA said: 'The Act provides for the circumstances in which the name of a registered medical practitioner may be removed from the register and the expression 'infamous conduct in a professional respect' has been used to define such conduct. 'Good character' is not a summation of acts alone, but relates rather to the quality of a person. The quality is to be judged by acts and motives, that is to say, behaviour and the mental and emotional situations accompanying that behaviour. However, character cannot always be estimated by one act or one class of act. As much about a person as is known will form the evidence from which the inference of good character or not of good character is drawn.' His Honour emphasised that the court was not there dealing with good character in some particular sense developed by the criminal law or by the law of defamation." 56 Whilst there is a certain overlapping of the two terms "fame" and "character", there is a distinction. Fame involves being known, favourably, by a large section of the public, whilst character is directed to a more objective evaluation which might conflict with what the general public thinks: Clearihan v Registrar of Motor Vehicle Dealers in the ACT (1994) 122 ACTR 25 at 29 (Miles CJ)."
15. It follows that what the evidence reveals both as to Mr Saunders' reputation and his intrinsic character, now arise for consideration.
16. Rule 10 also requires past offending to be considered independently of fame and character. It follows that this statutory scheme contemplates that a person may currently be of good fame and character and suitable for admission, even if in the past they have committed an offence.
17. There is no question that high standards of candour, honesty and integrity are required to be observed by applicants for admission to practice as legal practitioners. The obligation of disclosure of criminal convictions is one of full and frank disclosure, as Johnson J discussed in Jackson at [61]. There is no question in this case that, notwithstanding the position in relation to his 2011 application in the Northern Territory, in his 2014 application to the New South Wales Solicitors Admission Board, Mr Saunders met that obligation, firstly by the matters disclosed with his application and secondly, by his response to the Board's November enquiry as to why he was bringing his application for admission in this State.
18. The information which he then provided, gave a proper explanation as to why he had pursued admission here, the State where he hopes to practice, rather than in the Northern Territory. On that evidence it is apparent that pursuit of admission in this State accords with the requirements of s 44, earlier discussed.
19. It is also apparent from r 10(1)(f) that while it is possible that an applicant may have committed an offence which will preclude him or her from admission for all time, the matters there specified leave open the possibility that it might be concluded that particular past offending does not any longer preclude admission to practice.
20. The Law Society did not suggest that Mr Saunders' offending, even though it involved offences of dishonesty, fell into a category of offending which, for all time, would preclude his admission to practice. Rather, on its approach, the question was whether that offending, involving as it did dishonesty, with resulting adverse consequences for his good fame and character, now being properly understood and having not been repeated, left available the conclusion that Mr Saunders currently had the necessary good fame and character to permit his admission.
21. I agree with that approach.

The issue arising to be determined

1. Accordingly, like in Jackson, in these proceedings the issue which arises to be determined is whether Mr Saunders has now proven on the evidence that he is a fit and proper person to be admitted to practice in NSW.
2. In Jackson, Johnson J considered that under the 1987 Act, the applicant bore the ultimate onus of proving, on the balance of probabilities, that he or she was of good fame and character and otherwise suitable for admission as a legal practitioner, in accordance with the provisions of s 140 of the Evidence Act. A similar approach has to be adopted under the 2014 Act.
3. The question which here arises is thus whether, in all of the circumstances, disclosed by the evidence as to all of Mr Saunders' conduct, including his offending, his failed application for admission in the Northern Territory, as well as the steps he has since pursued to address the shortcomings he accepts were properly identified by Riley CJ, it can be concluded that given his current fame and character and notwithstanding his 2009 offending, he has met the obligation falling upon him, to establish that he is now a fit and proper person to be admitted to practice in this State.
4. That is a question which has to be approached with some caution, for obvious reasons, but in a legislative context which comprehends the possibility of change earlier discussed. Whether such a change has occurred, is what here must be resolved.
5. It does not depend merely on the time which has passed since the refusal of his 2011 application, or on Mr Saunders making an application for admission to the Northern Territory Supreme Court which, in 2011, determined that he was not then a fit and proper person for admission in that State.

The 2009 offending

1. There is no question that the nature of Mr Saunders' offending was serious, involving as it did fraud in relation to Austudy benefits to which he was not entitled, committed while studying for his law degree, over a period from August 2006 to April 2008. They were offences of dishonesty and so are particularly relevant to a person seeking to pursue legal practice, which requires strict adherence to high standards of conduct. Mr Saunders accepted his failings not only by his 2009 plea, but also by the evidence which he gave in the 2011 proceedings, as well as in these proceedings.
2. It is also relevant to consider that, on sentencing, his offending was found to fall towards the bottom of the range of seriousness of such offending. Were it otherwise, his application would be made considerably more difficult. As discussed in Jackson, it must be remembered that the jurisdiction now granted to the Court under the 2014 Act to entertain an appeal such as this, is not a punitive one. It is, however, to be exercised in the public interest and for the protection of the public, in the face of this admitted offending.
3. The consequences of Mr Saunders' offending have been serious indeed, including as they did the destruction of the opportunity which he had prior to that offending, to pursue a legal career for which his academic achievements and interests appeared well to fit him.
4. It is whether the possibility of such a career is still no longer available to him, which now rises to be determined in light of what the evidence establishes as to his current good fame and character. Having regard to the nature and seriousness of Mr Saunders' offending; the time at which it occurred, between 2006 and 2008; that he was then a relatively young man; that it was Mr Saunders himself who confessed his offending and repaid the Austudy benefits he was not entitled to; that he pleaded guilty to the offences charged; and the evidence of what he has done to address the reasons for which his 2011 application for admission was refused, I consider that this offending is not a basis on which he should now be refused admission under the 2014 Act, notwithstanding the seriousness of the errors of judgment which he made, when he did not report his earnings to Centrelink, as he ought to have.

The failed application for admission in the Northern Territory

1. Mr Saunders disclosed his conviction when seeking admission in the Northern Territory. Its Admission Board did not consider him to be a fit and proper person, applying considerations in similar terms to those arising under the 2004 Act and now the 2014 Act. In 2011, his application to the Northern Territory Supreme Court was opposed by the Law Society of the Northern Territory on three grounds: "a. the Applicant has been convicted of offences of dishonesty and the circumstances of the offences, the period over which the offending occurred and their relatively recent occurrence mean that he is not at this time a fit and proper person for admission; b. the Applicant gave a misleading account of facts and circumstances surrounding the commission of the offences to the Court of Summary Jurisdiction for the purposes of obtaining a reduced penalty and as such, demonstrated a lack of candour which, though not candour for the purposes of this application, nevertheless indicates that he is not at this time fit and proper person for admission; c. the Applicant:- i. swore an affidavit that he had given full disclosure of the circumstances of the commission of the offences to the Admissions Board; ii. swore a further affidavit in these proceedings purporting to give further disclosure of the circumstances of the commission of the offences; and in both cases, failed to provide a candid account of the circumstances of the commission of the offences and as such, is not at this time a fit and proper person for admission."
2. There was no issue in the 2011 proceedings that the nature of Mr Saunders' offending meant that he was not a fit and proper person to be admitted at the time of the offending. The issue was whether he was a fit and proper person at the time of the hearing of the appeal.
3. The case advanced in the 2011 proceedings in counsel's submissions was that a burden fell on the Law Society to satisfy the Court of the existence of the adverse facts it asserted, as discussed by Martin CJ in Re Deo [2005] NTSC 58; (2005) 16 NTLR 102 at [4]). Mr Saunders gave evidence in support of his application and finally contended that this burden had not been met. In written submissions, counsel argued that: "The offences occurred over a period ending over three years ago. The offences were out of character. There is nothing in relation to the nature of the offending to suggest the Applicant is not generally of good fame and character or that such dishonest actions are likely to recur. That time and the maturing that has occurred in that time has been significantly magnified by the sobering experience of the original court process and more significantly the hardship of the year delay in waiting for an outcome for his admission application. Both experiences have particularly humbled the Applicant."
4. Riley CJ observed at [9] - [13]: "[9] In his application for admission the applicant provided the Board with a disclosure statement relating to the offending and also with the sentencing remarks from the Court of Summary Jurisdiction. He disclosed that he had been convicted of five counts of engaging in conduct as a result of which he obtained a financial advantage, knowing or believing that he was not eligible to receive that financial advantage, contrary to the provisions of s 135(2)(1) of the Criminal Code (Cth). On 30 March 2009 he was dealt with in the Court of Summary Jurisdiction when he was convicted on each count and released on a bond in the sum of $2000 in his own recognizance to be of good behaviour for a period of 12 months. [10] The applicant advised that the offending occurred when, for the period from August 2006 to April 2008, he received Austudy benefits from Centrelink pursuant to an entitlement arising from his course of study at Charles Darwin University. During the relevant period he also worked in casual employment and he failed to declare his earnings from that employment to Centrelink contrary to his obligations. He thereby received more in the way of benefits than would be his entitlement had he disclosed his earnings. [11] At the end of the period the applicant commenced full-time work. He stated that he was aware he had accumulated a large debt and he approached Centrelink and informed an officer that he had been overpaid. He provided his pay slips to the officer and requested that the amount to be repaid be calculated so that he could make the necessary repayments. The calculation revealed the applicant had been paid $9,236.46 to which he was not entitled. He subsequently repaid the amount in full. [12] In his affidavit the applicant explained that he had previously been in receipt of benefits and had terminated those benefits whilst he took a break from studies. When he resumed his study in 2006 he suffered delay in having benefits restored. Once the benefits were restored, and when he started to receive income, he said he approached Centrelink and informed an officer that he had commenced working and requested that appropriate declaration forms be provided to him. He was advised by the officer to declare his income on the Centrelink website, but he was unsuccessful in his attempts to do so. Thereafter he said he approached the Centrelink office on two further occasions requesting that the appropriate declaration forms be sent to his address. The forms did not arrive. In his disclosure statement he went on to say (Affidavit of Applicant affirmed 8 June 2010 Annexure F1 at [18]). Following the frustration of having to reapply for my benefits, the month long process therein involved, and having attempted three times to declare my income unsuccessfully I felt worn down by Centrelink. Each time I was directed to the correct procedures for declaring income and each time Centrelink had failed to send me the appropriate documentation to comply with these procedures. I waited for a while for the fortnightly form to arrive with fading attentiveness. I felt that I had made a concerted and genuine attempt to do the right thing only to be frustrated by Centrelink. My focus was on my studies, my new job, my new home, and getting by. The frustration and stress was magnified by my financial need. I was struggling to meet costs even receiving the extra money and foresaw difficulties ahead. I was aware that many students failed to declare their income. The usual outcome is that they are caught at some later stage and forced to repay the money. In fact I had never heard of a student not being caught up with eventually. It is extremely common behaviour within the student body and I felt some comfort in this fact. However I had never heard of a student being prosecuted for this type of behaviour. I genuinely believed that by failing to declare my income I would receive a slightly higher sum of money each week that I would be able to pay back with interest at a later stage but with no other penalty. I conceived of the money as a loan which I always intended to declare and repay. Moreover as I had the financial record of an average student I did not believe I could approach a financial lending institution for a loan. ... My behaviour was never a sinister attempt to defraud the Australian social security system. [13] The sentencing remarks reveal that the Magistrate accepted that the applicant was contrite and had voluntarily made full disclosure to Centrelink followed by repayment of the money due. His Honour concluded that the applicant had used the system as a "lending institution" with the intention of repaying the money. In sentencing his Honour observed that the applicant had fully co-operated with the authorities. His Honour described the applicant's prospects of rehabilitation as being "extremely high"." [Footnotes omitted]
5. His Honour did not accept, however, Mr Saunders' evidence that he was not, at the time of the offending, aware that his conduct would amount to a criminal offence (see at [21] - [23]). His Honour took the view at [24], that he had that awareness at the relevant time and observed that: "… His subsequent assertions to the contrary are fanciful and reflect an effort on his part to minimise his culpability. They demonstrate that, at the time of giving evidence, he was not fully accepting of responsibility for the course of criminal conduct he had undertaken. At the time he gave evidence in support of his application for admission as a local lawyer, he did not acknowledge his true state of mind as it existed at the time of the offending. This finding impacts upon my assessment of whether or not he is now a fit and proper person to be admitted as a local lawyer."
6. At [35], after an analysis of the evidence as to Mr Saunders' offending, the circumstances in which it came to light, what had been advanced on sentencing and the disclosures he had made to the Admissions Board, his Honour concluded that his offending had involved acts of commission rather than omission which were not properly disclosed to the sentencing Court or in the disclosure statement.
7. At [40] Riley CJ also observed that no evidence had been led as to Mr Saunders' conduct and behaviour during the intervening period and that nothing of substance has been placed before the Court to demonstrate his rehabilitation, other than a description of his employment history which included work in Sydney, both as a clerk with a firm of solicitors, and work on voluntary basis with the Aboriginal Legal Service for three months. His Honour said at [40]: "… There was no evidence as to how, or to what extent, the applicant had recognised and sought to address his rehabilitation. Following the recording of the convictions, in the circumstances of this case it is not sufficient for the applicant to rely solely upon the lapse of time. It is necessary for the applicant to demonstrate that whilst he was not a fit and proper person at the time of the offending, he is now a fit and proper person to be admitted as a local lawyer. He has not done so."
8. In the result, his Honour concluded that Mr Saunders was not a fit and proper person for admission, having failed to provide the Board or the Court with a candid account of the commission of the 2009 offences.
9. In his affidavit sworn in these proceedings, Mr Saunders accepted the correctness of the conclusions which Riley CJ came to, although he explained the circumstances in which he had come not to lead evidence which was then available, as to his character and what he had done to address his rehabilitation, since his offending.
10. In his 2014 application to the Board and in these proceedings, Mr Saunders did lead evidence as to such matters and did not simply rely on the passage of time to demonstrate that he is currently a fit and proper person. He gave a detailed account, supported by considerable evidence called from others, as to steps he had pursued in order to reflect on and address the failings Riley CJ had identified, including by his pursuit to rehabilitation, so that he would become fit to practice.
11. The Board's approach, that a longer period of time was necessary in order for Mr Saunders to re-establish his good fame and character, does not seem to accord with the approach taken by Riley CJ, that lapse of time was not solely a basis on which such an assessment could rest. Further, if the view that he should re-apply for admission in the Northern Territory influenced the decision to refuse his application, the Board appears to have taken an irrelevant consideration into account, given the provisions of the legislative scheme under which it had to consider his application. The statute imposed no such obligation upon him.
12. This, however, is a hearing de novo and does not depend on any finding of error, so far as the Board is concerned. The question is whether Mr Saunders had established his current fitness on the evidence he has led as to his good fame and character and past offending.

Good fame and character

1. In his affidavit Mr Saunders admitted both his immaturity and his serious errors of judgment in his approach to the Austudy payments he received, how he approached his dealings with Centrelink and the circumstances in which he did not appreciate, as he ought to have done, that his actions were both wrong and involved serious criminal offending.
2. His case was that despite that offending and the poor way with which he had dealt with it in 2011, he is not now precluded from a finding that in 2015, he is a fit and proper person for admission as a lawyer, having not only accepted Riley CJ's criticisms, but having since 2011 acted upon them, in order to rehabilitate himself, so as to make him a fit an proper person to be admitted to practice law.
3. Mr Saunders gave evidence as to the trajectory his life has taken since the refusal of his 2011 application, his remorse and pursuit of rehabilitation, his life, reputation and intrinsic character. He also led unchallenged corroborative evidence.
4. That evidence showed that those who came forward to give evidence to support his application, who were each aware of the refusal of his application for admission in 2011 and in 2014, as well as of the reasons given by Riley CJ for the refusal of his admission, considered that with the assistance of time, experience and his own efforts to address his previous conduct, he was now suitable for admission. That evidence, as the Law Society accepted, showed that he presently is considered by those persons who know him well to be of good fame and character. Their evidence also sheds light on Mr Saunders' intrinsic character.
5. Mr Conor, for example, a friend of some 30 years and a practicing solicitor in Adelaide, attested to the trust and faith which he had in Mr Saunders, who he described to be deeply principled, with a passion for civil liberties. He considered Mr Saunders' offending and subsequent conduct to have been out of character, given that he knew Mr Saunders to be honest and dependable. Mr Conor attested that Mr Saunders had experienced genuine angst over what he had done and its consequences. He also said that those experiences had been immensely challenging for Mr Saunders and had caused him to reflect and mature. He considered that Mr Saunders had the both the desire and potential to become an excellent lawyer with a focus on representing the disadvantaged.
6. Mr Nehmy of counsel, another long-time friend, said that the behaviour described in Riley CJ's judgment had surprised and disappointed him, as it did not fit with his experience of Mr Saunders, who he had found to have been loyal, reliable and trustworthy. Mr Nehmy said that they had become closer since 2012. He recounted the significant regret and remorse which Mr Saunders had expressed about his behaviour and the distress it had caused him. He also spoke of the work Mr Saunders had pursued in the mining industry in remote locations and the recent work he had undertaken in the supervision and training of indigenous Australian workers and as well as the desire he had spoken about to assist indigenous communities in a legal capacity. He also considered that in the past four years, Mr Saunders had matured significantly and that he craved the chance to make a contribution in the law. Mr Nehmy believed that Mr Saunders had much to offer the community if his application succeeded.
7. Another solicitor, Ms Racky, who has known Mr Saunders since 2014, also considered that Mr Saunders' expressions of regret for his previous actions to have been sincere and his ongoing pursuit of admission to demonstrate his commitment to a career in the law.
8. Mr Saunders had worked for Mr O'Brien, the principal of a Sydney law firm, before his 2011 application. Mr O'Brien described the work Mr Saunders had then performed, his diligence and enthusiasm and the opinions which he had formed of Mr Saunders, which were entirely positive. Mr O'Brien considered that Mr Saunders had the capacity to become an excellent legal practitioner.
9. After Riley CJ's decision was given, Mr Saunders had sought Mr O'Brien's counsel as to his future. He decided to pursue work outside the law, in order to reflect on what had happened to him and why and also to focus on his rehabilitation, in order to be able in future to demonstrate that he was a fit and proper person to hold a practicing certificate. They had discussed Mr Saunders' feelings of regret, remorse, embarrassment, distress and humiliation over the refusal of his application. Mr O'Brien said that it was evident from their discussions that Mr Saunders wanted to learn from his experiences and to reshape his attitudes and behaviour, so that he might one day successfully reapply for admission in New South Wales. Mr O'Brien also considered that Mr Saunders had demonstrably learned from his experiences, had matured in his approach to life and was ready to be admitted.
10. Mr Lovejoy, also a solicitor, had also known Mr Saunders since school. He said his experience was that Mr Saunders had a strong and principled character and that he was well regarded by those who knew him. They had also discussed his failure to gain admission in depth, in the last few years. It had been extremely traumatic for Mr Saunders, who Mr Lovejoy considered had used the time since as a period of growth and catalyst for self-improvement. Mr Saunders had spoken passionately of his desire to practice law and help those less fortunate than him during the time that he had worked in remote parts of Australia, performing work he viewed as rewarding and which, to Mr Lovejoy, had demonstrated an understanding of the importance of acknowledging and embracing the value of things greater than oneself. Mr Lovejoy, too, considered that Mr Saunders had much to offer and would be an asset to the profession.
11. Mr McMaster, a lawyer practicing in the Northern Territory, had attended university with Mr Saunders. He said that while at university, Mr Saunders had displayed an interest in social justice issues and the disadvantages experienced by indigenous Australians, which he had pursued with volunteer work at the North Australian Aboriginal Justice Agency. In 2010, he had pursed a four month placement at the Aboriginal Legal Aid Service in Sydney. Mr McMaster described the refusal of Mr Saunders' 2011 application to have been both traumatic and beneficial. His natural gifts, Mr McMaster considered, had resulted in a lack of maturity and a sense of entitlement typical of many of his peers, at the time of his offending. The humbling experience Mr Saunders had endured, had led to a significant degree of self-reflection and maturation of his attitude to life.
12. Mr Saunders had pursued work in the mining field, targeting opportunities to work with traditional owners and developing relationships and skills which Mr McMaster considered would be directly transferable to future work in the law. Mr McMaster also considered that Mr Saunders' refusal to give up his dream of working as lawyer for disadvantaged members of the community, to be a credit to him and evidenced his determination, tenacity, honesty and integrity.
13. Mr Walton had employed Mr Saunders over three seasons as a field assistant, in his capacity as Superintendent of Field Operations (Exploration) at BHP Billiton Australia, for seasonal exploration work at Groote Eylandt and East Arnhem Land. Mr Walton said that he had come to know Mr Saunders well, while living in field camps. He described the work Mr Saunders had performed in mentoring indigenous employees, who were being integrated into field crews and equipping them with basic job experience in the mining sector. He described the patience and care with which Mr Saunders undertook his work, while striving to show workers his respect and helping them to maintain their dignity.
14. Mr Walton also described initiatives Mr Saunders had pursued, such as including local Yolngu language in the crew safety pact and how this had underpinned the commitment to working together in the land and had matched the company's values in community relations. Mr Walton also described Mr Saunders' courage in voicing health concerns for workers, which were acknowledged by the business and had resulted in better protective equipment for crew. In 2013, Mr Walton had selected Mr Saunders to be the permanent field assistant on the project. He also described Mr Saunders' patent disappointment that he was unable to practice law, which was never far from his mind. Mr Saunders' strong beliefs in indigenous rights had caused Mr Walton deep reflection. He was constantly aware, he said, that Mr Saunders was capable of more in life, than his work was providing him.
15. Mr Saunders' older brother, Mr Steven Saunders, said that Mr Saunders had a strong work ethic, as well as a strong sense of responsibility and duty, which as he grew, extended beyond his friends and family to others, who he felt had been unrepresented. Mr Saunders had experienced both academic success and success in sport. He understood Riley CJ's reasons for refusing his brother's application in 2011, but considered that further refusal of Mr Saunders' admission would prevent him from having a positive influence in a field where he could do good work and would involve a disproportionate punishment for his earlier mistakes. He also described the burdens which had been imposed on Mr Saunders' parents and family and their concerns. Mr Saunders had suffered bouts of depression which he had had to grapple with, since 2011. He also said that Mr Saunders had rightly taken full responsibility and ownership of his situation and had made it his primary focus, in recent years, to recognise and purge his character flaws. The experience had been difficult, but had led Mr Saunders to become a stronger, more compassionate and self-aware character, than he was in 2011.
16. This various evidence was consistent with Mr Saunders' own unchallenged evidence as to the entry of his plea, understanding the potential consequences of his conviction; his acceptance of Riley CJ's criticisms; his utmost regret, shame and embarrassment as to the way he had acted; his ongoing reflections since and the consequences of these experiences. He explained his experiences while giving evidence in the Northern Territory proceedings; why certain available evidence had not then been led; and why in some respects, he did not explain himself well, when being cross-examined.
17. Mr Saunders said that with the benefit of hindsight, greater maturity and the consequences of the salutary lesson he had learned, he was at a loss to understand how he could have been so blind to his obligations.
18. Mr Saunders explained his work since refusal of his 2011 application and how he has pursued his interests in indigenous communities and other community activities. He also described the professional assistance he had sought and his conscious pursuit of high ethical standards; what he had otherwise done to address Riley CJ's concerns; and to rehabilitate himself, so that he might become a fit and proper person for practice as a lawyer.

Conclusion

1. On all of this evidence, it is apparent that Mr Saunders, as a relatively young man, made a series of very serious mistakes, when committing the acts of dishonesty which involved criminal offending and resulted in the convictions which led to the refusal of his 2011 application for admission in the Northern Territory.
2. This offending and his failure in 2011 to accept proper responsibility for what he had done, effectively derailed the life Mr Saunders has long wished to pursue in the law. The 2014 Act recognises, however, that human beings, flawed as they are, are capable of change.
3. Mr Saunders, I am satisfied on all the evidence I have discussed, has established that he is truly remorseful for his offending. On the evidence, he has attained a proper understanding of the humiliating, but proper reasons for which Riley CJ came to conclude that in 2011 he was still not a fit and proper person for admission to practice as a lawyer, given his serious errors of judgment. By pursuing, as he has, his rehabilitation in the ways described in the evidence, including by those who know him best who now support his application for admission to practice for the reasons they have described, he has, I am satisfied now, become a person who may be accepted to be a fit and proper person for admission to practice, now being of good fame and character, notwithstanding his earlier offending.
4. The evidence as to the changes he has wrought reflect that his intrinsic character, as well as his current reputation, are not such that his admission to practice the law, which he is eligible by his training and qualifications to pursue, should continue to be precluded, because of concerns that he remains unsuitable to practice.

Orders

1. I will also hear the parties as to the appropriate orders to be made, which appear to me to be that: 1. The appeal is allowed. 2. The Legal Profession Admission Board's decision of 17 February 2015 is set aside. 3. This order has the same effect as a compliance certificate provided to the Court by the Legal Profession Admission Board.

Amendments 04 December 2015 - typographical error on coversheet catchwords - s.135(2)(i) changed to s.135.2(i) 10 December 2015 - coversheet - amendment representation field DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2015