The Application of FXI under s 121 of the Legal Profession Uniform Law (NSW) [2024] NSWCATOD 6

NCAT Occupational|2023-12-11

Legal Profession Uniform Law 2014 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: An application for admission as a legal practitioner by MCF [2014] QCA 154 Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 Godla v Director of Public Prosecutions (NSW) [2002] NSWCA 193 In the matter of an application for admission as a legal practitioner by MCF [2015] QCA 154 Legal Services Board v McGrath (No 2) (2010) 29 VR 325; [2010] VSC 332 McCowan v Council of the Law Society of NSW [2014] NSWCATAP 44 McGirr & Anor v The Council of the Law Society of NSW [2014] NSWCATOD 154 Ziems v the Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 Texts Cited: Not applicable Category: Principal judgment Parties: FXI (Applicant) Representation: Counsel: I Lloyd KC (Applicant)

Solicitor: P Beaumont (Applicant) Council of the Law Society (Interested Party) File Number(s): 2023/00232410 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW),the disclosure of the name of the Applicant, or any information tending to reveal his identity, is prohibited until further order. The Applicant is to be referred to as FXI for so long as the disclosure of his name is prohibited.

Introduction

This is an application brought by FXI (the Applicant) to be approved as a lay associate pursuant to s 121 of the Legal Profession Uniform Law 2014 (NSW) ("the Law"). The Applicant wishes to work as a lay associate of a law practice so that he can complete his mandatory practical legal training, being a step that must be completed before applying to be admitted to the legal profession.
The reason that the application has been brought arises from the fact that the Applicant has been convicted of serious criminal offences and the requirements of s 121 of the Law, the terms of which are: 121 CONTRAVENTION BY LAW PRACTICE--DISQUALIFIED OR CONVICTED PERSON AS LAY ASSOCIATE (1) A law practice contravenes this subsection if the law practice has a lay associate whom any principal or other legal practitioner associate of the law practice knows to be-- (a) a disqualified person; or (b) a person who has been convicted of a serious offence-- unless the lay associate is approved by the designated local regulatory authority under subsection (2). Penalty: 100 penalty units. (2) The designated local regulatory authority may, on application, approve a person as a lay associate for the purposes of this section. An approval may be given generally, or for a particular position or category of positions with a particular law practice, or for a particular category of positions with any law practice. (3) In dealing with an application for approval of a person as a lay associate, the designated local regulatory authority may consider any relevant matters and must consider the following matters so far as they are relevant-- (a) the nature and circumstances of the person's disqualification or conviction; (b) the requirements and responsibilities of the arrangement or kind of arrangement under which the person is seeking to be employed or otherwise involved; (c) the degree of connection between the person's disqualification or conviction and the requirements and responsibilities of the arrangement or kind of arrangement. (4) An approval may be granted unconditionally or subject to specified conditions.
The application initiating these proceedings sought the following order: 1. Pursuant to S121(2) of the Legal Profession Uniform Law (NSW), [FXI] is approved to be a lay associate of any New South Wales law practice, either generally or on such conditions the Tribunal sees fit, with such permission to include employment in the following roles: paralegal, legal clerk, legal secretary and research assistant.
The grounds for the application may be briefly summarised as follows: 1. The Applicant requires the approval of a "designated local regulatory authority", the NSW Civil & Administrative Tribunal - Occupational Division ("the Tribunal") to work as a "lay associate" of a law practice so that the Applicant can complete his mandatory professional legal training and then apply for admission to the legal profession. 2. To be eligible for admission to the legal profession s 16(1)(a) of the Uniform Law provides that the Applicant must complete the prerequisites for the issue of a compliance certificate, including the specified academic qualifications prerequisite and the specified practical legal training prerequisite. 3. The Applicant has completed the specified academic qualifications prerequisite. 4. The Applicant is currently enrolled and is completing the specified practical legal training prerequisite through the College of Law in order to obtain the Graduate Diploma of Legal Practice ("GDLP"). 5. The GDLP course requires the Applicant to complete approximately 75 hours of supervised workplace experience at a law practice that delivers legal services, that is, to work as a "lay associate" of a law practice. 6. The Applicant requires approval from the Tribunal to work as a "lay associate" as he is a person who has been convicted of a serious offence within the meaning of s 121(1)(b) and the definition in s 6 of the Uniform Law namely: 1. convictions for six counts of "use carriage service for sexual activity with a person under 16" pursuant to s 474.25A(1) of the Criminal Code Act 1995 (Cth), that occurred between April 2013 and October 2014; and 2. convictions for four counts of "use carriage service to groom person under 16" pursuant to s 474.27(1) of the Criminal Code Act 1995 (Cth) that occurred between April 2013 and October 2014. 1. The Applicant has demonstrated a high level of capacity and application to the academic qualifications prerequisite and seeks to have the opportunity to now complete the mandatory practical legal training prerequisite. 2. In circumstances where the Applicant has made significant progress towards rehabilitation (in addition to his academic efforts), he does not pose a risk to the public or the integrity of the legal profession.
In conjunction with lodgment of the application referred to above, the Applicant also lodged an application pursuant to s 64(a), (b) and (c) of the Civil & Administrative Tribunal Act, 2013 (NSW) (the NCAT Act) for orders providing for non-disclosure and non-publication of aspects of these proceedings. By order made on 2 August 2023, the Tribunal made this order: "Pursuant to s 64(1)(a) of the NCAT Act, the disclosure of the name of the Applicant, or any information tending to reveal his identity, is prohibited until further order. The Applicant is to be referred to as FXI for so long as the disclosure of his name is prohibited."
This Tribunal is the designated local regulatory authority for the purposes of considering the application: see Table 1 in s 11(1) of the Legal Profession Uniform Law Application Act 2014 (NSW) (the Application Act).
On 2 August 2023 the Tribunal also ordered that the Council of the Law Society of New South Wales has leave to participate in the matter by the filing of evidence and by the making of submissions. The statutory basis for the presence of the Law Society is cl 21(3) of sch 5 of the NCAT Act. That schedule includes provisions dealing with hearings concerning the Law and that clause provides that the Tribunal may grant leave to "any other person to appear at the hearing if satisfied that it is appropriate for that person to appear". We remain so satisfied.

Evidence

The Applicant tendered and relied upon the following evidence which were marked as exhibits as indicated below: 1. Affidavit of the Applicant dated 25 September 2023 - Exhibit A. 2. Applicant's curriculum vitae - Exhibit B. 3. Academic transcript - Exhibit C. 4. Letter from University dated 19 May 2021 - Exhibit D. 5. Academic transcript from Oxford University - Exhibit E. 6. Letter from Oxford University dated 31 August 2023 - Exhibit F. 7. Email from College of Law dated 7 July 2022 - Exhibit G. 8. Background information on practical legal training - Exhibit H. 9. Applicant's criminal and driving history including National Police Check and driving history - Exhibit I. 10. Sentencing remarks of District Court judge dated 3 May 2017, Agreed Statement of Facts, sentencing order - Exhibit J. 11. Expert psychological and psychiatric reports tendered at sentencing proceedings - Exhibit K. 12. Presentence report - Exhibit L. 13. Applicant's letter to the court - Exhibit M. 14. Parents' letter to the court - Exhibit N. 15. Prior criminal history - police FACTS, psychiatric report and s 32 order - Exhibit O. 16. Juvenile caution from 2004 - 2005 dated 24 April 2007 - Exhibit P. 17. Breach CPR charge, police FACTS, judgment of Magistrate dated 23 September 2022 and costs certificate - Exhibit Q. 18. NSW Child Protection Register Conditions, Confirmation of Sex Offender registration in the UK, letter approving travel to the UK, student visa - Exhibit R. 19. Report of forensic psychologist dated 22 August 2023, report of forensic psychiatrist dated 16 August 2023, report of UK forensic psychologist dated 23 September 2023 - Exhibit S. 20. Letter from Applicant's parents, references from a solicitor, a barrister, a retired doctor and family friend, from a nurse and friend, from a doctor and friend, from a further friend, from a tutor at Oxford University, employment references - all marked exhibit T.

Confidentiality

It is convenient to consider and determine the Applicant's application for confidentiality orders to be made as such orders will have an influence on the matters that can be disclosed in these proceedings, including in this decision.
The only order pressed by the Applicant's counsel concerning confidentiality orders was an order as follows: "1. Pursuant to s 64(1)(a) of the NCAT Act, the disclosure of the name of the Applicant, or any information tending to reveal his identity, is prohibited."
The other orders contained in the original application were not pressed.
The primary ground in support of the proposed order is that the Applicant submits that such an order is necessary to preserve the clear legislative policy of ensuring the confidentiality of the Child Protection Register established pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW) (the "Child Protection Act"). A secondary ground upon which the Applicant relies is to the effect that it is necessary for a confidentiality order to be made to protect the safety of the Applicant.
The Applicant was sentenced by a judge of the District Court on 3 May 2017 and he completed his sentence in June 2019. He was placed on the Child Protection Register established under the Child Protection Act for a period of 15 years (expiring in June 2032). The Register requires him to report certain personal information to the Commissioner of Police during the registration period and also places restrictions upon him including in relation to his ability to travel overseas without permission from the Commissioner and his ability to apply for any child-related work.
Counsel for the Applicant submitted that the Child Protection Register is not open to the public and that the provisions of s 21E of the Child Protection Act are relevant. That section provides: 21E PROHIBITED DISCLOSURE OF INFORMATION CONCERNING REGISTRABLE PERSONS A person must disclose any information relating to a registrable person obtained in connection with the administration or execution of this Act, unless the disclosure - (a) is made in connection with the administration or execution of this Act or a corresponding Act or for law enforcement purposes, or (b) is made with the consent of the person to whom the information relates, or (c) is ordered by a court, or any other body or person exercising judicial functions, for the purposes of the hearing or determination by the court, body or person of any matter, or (d) is made with the consent of the Commissioner of Police given (either generally or in a particular case) for the purposes of ensuring the safety or protection of a child or of children generally, or (e) is made to the Minister or with the consent of the Minister (given in a particular case), or (f) is authorised or required by or under this Act or any other law. : Maximum penalty--100 penalty units or imprisonment for 2 years, or both.
It can be seen that s 21E prohibits disclosure of any information relating to a registrable person obtained in connection with the administration or execution of the Child Protection Act but that it also provides that that prohibition does not prevail where the disclosure is ordered by a court or any other body or persons exercising judicial functions for the purposes of the hearing or determination by the court, body or person of any matter.
Apart from the submission that the Child Protection Act evidenced a policy of non-disclosure the Applicant also submitted that a confidentiality order was necessary to protect his personal safety.
During the hearing, counsel for the Applicant made reference to section 18(1)(a) of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). That section provides that a person must not publish in relation to "any proceedings relating to an order under this Act"…"information that identifies or is reasonably likely to enable the identification of the person as the person against whom the order is sought or any such order is made".
We are of the view that s 18 is not relevant to the issues before us. That is because that section is concerned with orders made under the Child Protection (Offenders Prohibition Orders) Act 2004. Such orders concern orders made on the application of the Commissioner of Police which give to the Local Court power to make a "child protection prohibition order" which has the effect of prohibiting a person from engaging in conduct specified in the order.
The Applicant's submissions acknowledge that s 21E of the Child Protection Act does not apply directly to a court or a tribunal. However, the Applicant submits that the Tribunal and superior courts in New South Wales have consistently held that policy considerations provide a sound basis for the making of a confidentiality/non-publication order on the ground that it is in the public interest for such an order to be made in order to protect the statutorily enshrined confidentiality of the Child Protection Register.
The Applicant's submissions rely upon early decisions of superior courts. In particular, reliance is placed upon the case reported as In the matter of an application for admission as a legal practitioner by MCF [2014] QCA 154. That was a decision of the Court of Appeal in Queensland where the applicant was subject to the obligations of the Child Protection (Offender Reporting) Act 2004 (Qld) which is in similar terms to the legislation of this State.
The judgment of the Queensland Court of Appeal in MCF concerned an application by a person to be admitted as a legal practitioner. The applicant had been sentenced in respect of the use of a carriage service to transmit child pornography material. One consequence of the applicant's conviction was that he became a "reportable offender" under the Child Protection (Offender Reporting) Act 2004 (Qld). The applicant's counsel asked that the applicant not be identified. He submitted that to do so would have the consequence that the applicant would be "forever blighted". The court held that identification of the applicant in the judgment would subvert the evident purpose of the provisions of the Child Protection (Offender Reporting) Act 2004 (Qld) which govern the use to which information contained on the Child Protection Register can be put. By those provisions, access to the information contained on the Register is strictly controlled and restricted and the general public do not have access to that information. The court stated that such a legislative approach is consistent with the purpose of the Act, that is, to require "reportable offenders" to keep police informed of their whereabouts and other personal details for a period of time after the release into the community so as to reduce the likelihood that they will reoffend and to facilitate the investigation and prosecution of any future offences that they may commit. The court held that it followed that if the applicant is identified in the judgment the confidentiality which the legislature intended to attach to that information would be destroyed. The court made an order that the applicant not be identified in the court's reasons.
The Applicant further submitted that the following matters are relevant to his application for a confidentiality order: 1. The Applicant had been granted a non-publication order for subsequent criminal proceedings in the Local Court of New South Wales. The Applicant entered a not guilty plea, and the charges were dismissed. 2. The sentencing judgment for the Applicant's offences were not published on New South Wales Caselaw or elsewhere. 3. The Applicant's current and previous proceedings have not attracted any media coverage of any kind within Australia. 4. The Applicant has never been convicted of any other offences under the Child Protection Act. 5. The Applicant has not otherwise been identified as a registrable person in any court or tribunal judgment.
The Applicant submitted that as he aspired to a career in the law and intends to apply in due course for admission to the legal profession, his prospects of obtaining a non-publication order during those proceedings (should they be heard in the New South Wales Supreme Court or Court of Appeal) would be damaged if the Tribunal were to publish his name or identifying information in these proceeding. This is because the court may decline to make a non-publication order if identification of the Applicant has already been put into the public domain.
The Applicant also submitted that publication of his name would raise the potential for him to suffer serious social embarrassment and cause interpersonal problems for the Applicant. This could in turn compromise both his employment and the substantial progress towards rehabilitation that he has made since his offending.

Decision on Confidentiality

We are in agreement with the Applicant's submissions and note that the submissions of the Law Society are neutral, neither consenting to nor opposing the making of a confidentiality order. We intend to make an order in the terms sought namely as follows: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure of the name of the Applicant, or any information tending to reveal his identity, is prohibited. The Applicant is to be referred to as FXI for so long as the disclosure of his name is prohibited.
Our reasons for acceding to the Applicant's application in this respect is set out in the following paragraphs. Our reasons are based in part upon the view we take (explained later) that the Applicant's application for approval to work as lay associate should be approved.
It is fundamental that, generally speaking, decisions of courts and tribunals should be open and that transparency should not be hindered by confidentiality orders. However, there are many exceptions requiring departure from this fundamental principle. If that were not the case s 64 of the NCAT Act would be unnecessary.
In this case, the effect of the order we propose to make is to conceal the identity of the Applicant and any information tending to reveal his identity. However, there is disclosure of the facts pertaining to the proceedings and of our reasons, in sufficient detail to enable disclosure of the application, these reasons and the orders we propose to make in such detail as to enable a reasonable understanding of these proceedings to be formed by members of the public.
Furthermore, it should not be forgotten that the Law Society is aware of the proceedings, including the facts in support of the application, and has informed the Tribunal that it neither consents to nor opposes the orders for confidentiality. It may have been more helpful to the Tribunal if the Law Society had given reasons for its neutral stance. Nevertheless, it is important to record that the Law Society has not opposed the application for confidentiality. We are of the view that the Applicant would suffer in the following respects were his application for a confidentiality order to be refused: 1. He would obviously be embarrassed amongst those he works with and amongst members of the legal profession and that such embarrassment may extend to having an effect on his ability to undertake his professional obligations and progress his rehabilitation to the fullest extent. There is also the possibility of his personal safety being at risk. 2. The prospects of obtaining a similar confidentiality order in conjunction with an application for admission as a legal practitioner would be diminished were his identity to be exposed in these proceedings. This was a consideration acknowledged to be relevant in Godla v Director of Public Prosecutions (NSW) [2002] NSWCA 193 where Kirk JA declined to make a non-publication order having regard to the fact that the identity of the Applicant in that case had been disclosed in other superior court proceedings. 3. In addition, there is force in the Applicant's submission that the Child Protection Act reflects a policy that particulars on the Child Protection Register established by the Child Protection Act should be confidential other than to those expressly authorised to have access to it. 4. Furthermore, the confidentiality order is to be read in conjunction with the conditions we intend to impose on the grant of approval. As will be seen later, these conditions include a requirement that the Applicant take steps to inform the law practice in which he works of these reasons and of related material. Accordingly, the law practice engaging the Applicant will be fully informed.
We will now turn to a consideration of the Applicant's substantive application for approval under s 121 of the Law.

Applicant's Submissions

In the following paragraphs we summarise the Applicant's submissions in support of his application for approval.
The two paramount considerations for the Tribunal in determining an application under s 121(2) of the Law are whether the Applicant, if he were to work as a lay associate, would pose a risk to the public (see McGirr & Anor v The Council of the Law Society of NSW [2014] NSWCATOD 154 at [56]) and whether there would be a risk to the integrity/standing of the legal profession (described in McGirr as a relevant consideration but not the primary consideration).
By reference to the tendered evidence, the Applicant made submissions concerning the factual background.
The seriousness of the Applicant's criminal history is frankly acknowledged in the Applicant's submissions. The Applicant committed 10 online child sexual offences, each of which carried a potential maximum penalty of between 12- and 15-years imprisonment. The Applicant acknowledges that the conduct underlying the offences was both predatory and exploitative. The Applicant acknowledges that this type of offending is rightly regarded as abhorrent and disgraceful by the community.
To put the Applicant's submissions into the factual context it is helpful to summarise the salient points made by the sentencing judge on 3 May 2017 (see exhibit J) as follows: 1. The Applicant pleaded guilty to 10 offences (being six of engaging in sexual activity using a carriage service with a person under 16 and four of using a carriage service to transmit communications to persons under 16 with the intention of making it easier to procure the recipient to engage in sexual activity). The ten victims ranged in age between 13 and 15 and the judge stated that the "immediate reaction" might be that the offender (the Applicant) be gaoled for a substantial period. However, the judge indicated that there were a number of particular and highly unusual circumstances. 2. When he began his conduct in April 2013, the Applicant was 21 years of age and when he ceased in July 2014, he had passed his 23rd birthday. The sentencing remarks include a description of the events giving rise to each of the 10 counts. The judge acknowledged that the Applicant had pleaded guilty at the earliest possible time and that he has "repeatedly, powerfully, intelligently and with insight expressed his contrition and remorse for his activities" which the judge described as "entirely genuine". 3. The remarks include reference to the opinions of a forensic psychologist from which the judge concluded that the Applicant's prospects of rehabilitation should be regarded as "very favourable". 4. The sentencing remarks also include reference to the opinion of a treating psychiatrist as to the Applicant's mental state which concerned a major depressive illness. The learned judge stated that, in his opinion, the Applicant's mental state did reduce the Applicant's moral culpability and that "that fact and his continuing mental illness, by way of depression, along with other factors, make him an inappropriate vehicle for general deterrence to be given its full weight and also reduces the need for specific deterrence." 5. The judge determined that a full-time custodial sentence would have a devastating consequence to the Applicant's mental health and would undermine the work done towards the Applicant's rehabilitation. 6. In the result, the judge determined that the Applicant should serve his sentence in the community and he was referred for assessment for an intensive corrections order. Such an order was later made.
The Applicant's submissions also refer to an earlier matter occurring in 2013 in which the Applicant was charged with breaching the terms of an AVO. Those charges were dismissed on the basis that the Applicant was suffering from a mental health condition. In addition, the Applicant's affidavit (Exhibit A) discloses that in April 2007, the Applicant was cautioned as a juvenile for telecommunications offences committed when he was aged between 14 and 15 years.
The Applicant submits that the mere fact that the Applicant has been charged and convicted of serious offences does not automatically militate against a grant of approval. The Applicant's submissions referred to remarks made by Warren CJ in Legal Services Board v McGrath (No 2) (2010) 29 VR 325; [2010] VSC 332 where her Honour said at page 337 that convictions for, or arising out of, child pornography offences are not prima facie evidence that a person is not a fit and proper person to remain on the roll kept by the court. The case concerned a solicitor who had pleaded guilty to one count of knowingly possessing child pornography and one count of using an online information service to publish child pornography and of two further counts of knowingly possessing child pornography. Her Honour said at page 337 "The nature of the material involved, the extent and circumstances of the offending in question, its relationship to the offender's professional life, and the behaviour of the offender before, during and after the legal processes which result from that offending will all be relevant to deciding any application to strike that offender from the roll."
The Applicant's submissions also relied upon the decision of the Court of Appeal of the Supreme Court of Queensland in the judgment earlier referred to as In the matter of an application for admission as a legal practitioner by MCF [2015] QCA 154. In that case, the court stated that what must be determined is whether the conduct underlying a conviction, together with any explanation for it, tells against an applicant's ability to practice as a lawyer. Further it must be determined whether the existence of such a conviction, considered in its proper context, means that the Applicant is not currently of good fame and character. The court quoted, with approval, the observations of Warren CJ referred to above.
The Applicant's submissions state that on the authority of the High Court in Ziems v the Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 in assessing the relevance of the applicant's convictions the Tribunal must consider "the real facts of the case [underlying the convictions]", as opposed to the conviction in isolation, the circumstances in which it occurred (including any mitigating factors causally related to the offending) its temporal connection to the present application, and any steps the applicant has taken to rehabilitate himself and re-establish his good character/standing in the community.
The Applicant submits that in assessing his criminal history, the Tribunal should have regard to four matters dealt with below.
The first is that the Applicant submits that his criminal history is now historical, the last incident of offending occurring in October 2014.
The second factor is that it is submitted by the Applicant that the Tribunal should have close regard to the findings of the sentencing judge (the key features of which we have summarised above). In particular, the sentencing judge found that the Applicant's prospects of rehabilitation to be "very favourable" and that his moral culpability for his offending was significantly diminished as a result of his youth/immaturity and the existence of a number of mental health conditions. The judge also acknowledged the powerful evidence of remorse.
The third consideration is that the evidence before the sentencing judge (which was accepted) was to the effect that the Applicant's interactions with the criminal justice system were partially influenced by his youth, relative emotional immaturity and significant mental health difficulties.
The fourth factor referred to in the Applicant's submissions concerns the expressions of remorse conveyed by the Applicant. This is reflected not only in his willingness to be open and honest in his evidence, but also in his tenacity in pursuing an ongoing program of rehabilitation.
The Applicant's submissions also deal at some length with the issue of rehabilitation.
The Applicant has tendered (see Exhibit S) three reports from medical experts, two being from a psychologist and one from a psychiatrist.
The report from Delphine Bostock, forensic psychologist, dated 22 August 2023 refers to the "psychological sessions" which the Applicant has attended with the psychologist since August 2016. The report is detailed and outlines the extensive number of sessions which the Applicant has attended. The author states that FXI has demonstrated long-term commitment to understand his offending and to ensure that it never happens again. The author states that FXI has consistently taken responsibility for his offending and expressed regret and remorse. He has demonstrated appropriate empathy for his victims. The author outlines "protective factors" such as FXI's positive attitude towards intervention and authority and to the fact that he adheres to psychological treatment. He also has "prosocial, supportive parents". Importantly, the author states that it is unlikely that FXI will place any member of the public in a situation of risk.
The Applicant also relies upon the report of Dr N Prior, psychiatrist, who has been seeing the Applicant for over 10 years from July 2013. Dr Prior states that, in his opinion, the Applicant "was not a paedophile but rather a sexually naive young man who was confused about his sexual identity in the context of suffering from an underlying and untreated major depressive disorder and panic phenomena." Dr Prior states that the Applicant has made excellent progress "symptomatically and functionally in that his index psychiatric diagnosis is now in remission, and has been in remission in the long-term." His report also states that the management of the Applicant's offending behaviour has been effective and that his mental state is now normal. Further, Dr Prior states that the Applicant's underlying psychiatric diagnosis of major depressive disorder with associated panic phenomena have been successfully controlled due to the Applicant's compliance with prescribed long-term psychoactive medication. Dr Prior's opinion is that the Applicant's previous offending behaviour is unlikely to reoccur. His report states that it is "highly unlikely that as a result of his psychiatric illness that he will place any member of the public in a situation of risk."
The third report is from Dr Cordwell, a forensic psychologist practising in Oxford, where the Applicant studied and where the Applicant consulted Dr Cordwell between November 2021 and August 2022 on a weekly basis. This report states that in the opinion of Dr Cordwell the Applicant poses a "low risk of reoffending" and at the time of completion of his studies there in the UK there were no ongoing concerns about his risk.
In further support of the Applicant's submissions concerning his efforts to rehabilitate himself the Applicant points to his academic record. This is apparent from his curriculum vitae (Exhibit B) which discloses that by 2021 the Applicant had obtained the university qualification of a Juris Doctor with distinction and the Juris Doctor Medal, and that by 2020 the Applicant had obtained a Bachelor of Civil Law (with merit) from the University of Oxford.
In further support of the submission that the Applicant has been rehabilitated, the Applicant points to the fact that he has been gainfully employed in a variety of roles of trust and confidence since the relevant offending and conviction. This included being engaged as an administrative assistant in a non-for-profit art school, as a teacher/tutor for a university, as a porter/receptionist/bar attendant at a university college and in various roles in hospitality businesses.
The Applicant's submissions rely upon the Applicant's own affidavit evidence (Exhibit A) in which the Applicant demonstrates a clear appreciation of the requirement to be full and frank in his disclosures of all relevant material to the Tribunal.
The Applicant submits that the Tribunal should have regard to his present circumstances, namely: he is now in his early thirties and enjoys the support of his family (as is evidenced by the letter from his parents, which is in evidence), he has been in employment since his offending and has used his time productively since then. His mental health conditions are now well-controlled and his overall risk of reoffending is low. The Applicant also relies upon a number of character references from friends, family and teachers or academics, each of whom speak favourably of the Applicant and who are fully apprised of the Applicant's criminal history.
In conclusion, the Applicant's submissions can be summarised as follows: 1. It is the Applicant's present ethical fitness assessed at the time of the application that is relevant. 2. The standard to be applied for approval to be a lay associate must necessarily be lower than the standard for admission to practice. 3. The Tribunal is empowered to impose conditions upon the Applicant's approval in order to mitigate risk. 4. The Applicant poses minimal risk to the public if he were to work as a lay associate. 5. The Tribunal could effectively eliminate any risk by imposing suitable conditions (details of which we discuss below).
The Applicant's submissions state that if the Tribunal is minded to grant the approval, appropriate conditions attached to that approval would be as follows: 1. The Applicant must not work on legal matters that concern children (defined as any person under the age of 18), and must not have any contact with children in the course of his work as a lay associate. 2. Whilst acting as a lay associate, the Applicant must be supervised by an Australian lawyer who holds a practising certificate which authorises the holder to supervise the work of others. 3. In addition to his obligations under s 122(1) of the Uniform Law (to inform any law practice of his convictions prior to becoming a lay associate), the Applicant must inform both the principal of any law practice in which he works and any legal practitioner directly responsible for his supervision, of the following matters prior to becoming a lay associate: 1. any conditions imposed on his approval under s 121 by the Tribunal; and 2. his status as a "registrable person" pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW). 1. Prior to becoming a lay associate, the Applicant must make the written reasons of the Tribunal available to both the principal of any law practice in which he works, and any legal practitioner directly responsible for his supervision. 2. The Applicant must provide proof of compliance with conditions 2 to 4 to the Director, Legal Regulation of the Law Society of New South Wales within seven days of becoming a lay associate of any NSW law practice. 3. The Applicant must notify the Director, Legal Regulation, of the Law Society of New South Wales of the occurrence of any future matter or event which might adversely affect his suitability to be a lay associate (including any criminal charges brought against him) within seven days of its occurrence.
We agree that approval should be accompanied by the imposition of the above conditions upon the Applicant. It would therefore be necessary to add to the proposed confidentiality order (referred to earlier in these reasons) the following: "The Applicant is exempt from order 1 for the purposes of making the disclosures required of him by the conditions placed upon him by the Tribunal pursuant to s 121(4) of the Law."
The substance of the Law Society's brief submissions were to the effect that it did not express a view on whether the Tribunal should approve the application and limited its submissions to providing information intended to assist the Tribunal to determine the application.
Both the Applicant and the Law Society submitted that the Tribunal should not make any order as to costs. We are in agreement.

Consideration

For the reasons set out in the following paragraphs we are comfortably satisfied that we should grant the approval sought by the Applicant to become a lay associate on the basis of the conditions described earlier. Our view is based upon our assessment of the Applicant's present fitness. This was the approach described in McCowan v Council of the Law Society of NSW [2014] NSWCATOD 44 where, at [69], the Tribunal stated that the Applicant in that case had the onus of establishing that he was "as at the date of the hearing a fit and proper person" to be a lay associate.
We agree with the Applicant's submissions that in assessing whether the application should be granted the primary issue is whether the protection of the public will be compromised. A further consideration is whether the integrity of the legal profession would be damaged. This involves the issue of whether maintenance of public confidence in the legal profession would the compromised: see Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 at [49].
The starting point must be an acknowledgement that the offences for which the Applicant was convicted were extremely serious and were of a nature that would provoke a high level of disgust in the minds of those with knowledge of what the Applicant did. However, as Warren CJ stated in McGrath, it is necessary to consider the extent and circumstances of the offending in question, its relationship to the offender's professional life, and the behaviour of the offender before, during and after the legal processes which result from that offending: see page 337.
We will now deal with the various factors relevant to our decision that approval of the Applicant's application should be granted. These are the matters that we have considered in coming to the view that the application should be granted and that the protection of the public and the reputation of the legal profession will not be adversely affected.
The first factor is that the offences occurred almost 10 years ago and the Applicant has not been convicted of any offence during those 10 years. The Applicant was relatively young at the time.
The next factor is the Applicant's attempts to rehabilitate himself both with respect to his mental health and with respect to his successful efforts in the study of the law.
The opinions of the three medical experts (Messrs Bostock, Prior and Cordwell) are persuasive, recording both the diligence of the Applicant in maintaining extensive consultation with the three medical experts and in recording their opinions as to the low risk of the Applicant reoffending.
There is no contrary evidence and we share the view based upon the evidence before us that the Applicant is not likely to reoffend.
By the time the sentencing judge came to deliver his sentencing remarks on 3 May 2017, the Applicant was well on the way to rehabilitation. The sentencing judge referred to the fact that the Applicant was deeply remorseful and that he had done "everything that he reasonably could do to try to see to his rehabilitation." His Honour made the prescient statement that the Applicant's "prospects of rehabilitation, it seems to me, should be regarded as very favourable."
During the period since the offending the Applicant has undertaken legal studies which he has completed successfully and to a very high standard. The evidence also reveals that the Applicant has undertaken worthwhile extracurricular activity such as being involved in the University Student Law Society, acting as a coach for student mooting teams, undertaking voluntary teaching duties to assist other students, working as a research assistant to a legal academic and working as a teacher/tutor for indigenous students.
It is also relevant that the evidence discloses that the Applicant has favourably impressed a variety of friends, teachers and academics whose statements indicate that they are fully apprised of the Applicant's criminal history. Further, there are in evidence a number of employment references that speak to the Applicant having conducted himself in a valuable, trustworthy and reliable way.
Two other factors operate in support of the Applicant's application. The first is that his application is to be engaged as a lay associate of a law firm which, in our view, must involve considerations applying a lower standard than those that would apply in connection with an application to be a legal practitioner. That is because, as a lay associate, his tasks would be limited to those delegated to him by his supervisor and the execution of those tasks would be supervised. The second consideration is that the conditions we intend to impose offer an extra layer of protection both in respect of risks to the public and in respect of risks to the legal profession. The conditions have been offered by the Applicant and it is appropriate that we accept them.
Accordingly, we are satisfied that the orders referred to earlier may be made. The formal orders of the Tribunal are as follows: 1. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW),the disclosure of the name of the Applicant, or any information tending to reveal his identity, is prohibited until further order. The Applicant is to be referred to as FXI for so long as the disclosure of his name is prohibited. 2. Pursuant to s 121(2) of the Legal Profession Uniform Law 2014 (NSW) (Uniform Law), FXI is approved to be a lay associate of any New South Wales law practice on the conditions set out below with such permission to include employment in the following roles: paralegal, legal clerk, legal secretary and research assistant. 3. The following conditions are attached to this approval: 1. The Applicant must not work on legal matters that concern children (defined as any person under the age of 18), and must not have any contact with children in the course of his work as a lay associate. 2. Whilst acting as a lay associate, the Applicant must be supervised by an Australian lawyer who holds a practising certificate which authorises the holder to supervise the work of others. 3. In addition to his obligations under s 122(1) of the Uniform Law (to inform any law practice of his convictions prior to becoming a lay associate), the Applicant must inform both the principal of any law practice in which he works and any legal practitioner directly responsible for his supervision, of the following matters prior to becoming a lay associate: 1. any conditions imposed on his approval under s 121 by the Tribunal; and 2. his status as a "registrable person" pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW). 1. Prior to becoming a lay associate, the Applicant must make the written reasons of the Tribunal available to both the principal of any law practice in which he works, and any legal practitioner directly responsible for his supervision. 2. The Applicant must provide proof of compliance with conditions (b) to (d) to the Director, Legal Regulation of the Law Society of New South Wales within seven days of becoming a lay associate of any NSW law practice. 3. The Applicant must notify the Director, Legal Regulation, of the Law Society of New South Wales of the occurrence of any future matter or event which might adversely affect his suitability to be a lay associate (including any criminal charges brought against him) within seven days of its occurrence. 1. The Applicant is exempt from order 1 for the purposes of making the disclosures required of him by the conditions placed upon him by the Tribunal pursuant to s 121(4) of the Uniform Law.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 18 January 2024 - Paragraph 37 - changed paraph references to page numbers 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: 18 January 2024

Child Protection (Offender Reporting) Act 2004(Qld)

Administrative Tribunal Act 2013(NSW)

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