Mutual Recognition Act 1992 (Cth) - Trans-Tasman Mutual Recognition Act 1997 (Cth) - Lawyers
Mutual Recognition
Lawyers
Australian States & Territories
Australia & New Zealand
[A] Trans-Tasman Mutual Recognition Act 1997 - Lawyers
"The principal purpose of the TTMRA is to enact legislation with the intention of recognising within Australia regulatory standards adopted in New Zealand regarding goods and occupations. The legislation was, as contemplated by the Trans-Tasman Mutual Recognition Arrangement, entered into on 9 July 1996 between the Commonwealth of Australia, New Zealand, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory. ...": Little and Victorian Bar Inc [2024] AATA 2852.
"In the process that led to the establishment on 1 January 1901 of the Commonwealth of Australia, there was a time when it was possible that the then colony of New Zealand might become a State within the Commonwealth of Australia. Reference to that possibility and how that did not come to pass is to be found in Quick and Garran’s Annotated Constitute of the Commonwealth of Australia, at p 228; and see also pp 233 to 234. Even so, the closeness of ties between Australia and the now long independent New Zealand is evident on the Australian statute book in statutes such as the Extradition Act 1988 (Cth), which, by Pt III, makes special and liberal provision in respect of extradition from Australia to New Zealand, adopting a regime once used for extraditions between Australian states; in the Trans-Tasman Mutual Recognition Act 1997 (Cth), which affords, in respect of both goods and occupations, preferential treatment for goods approved in New Zealand or occupations carried on in New Zealand in respect of Australia; and in the Trans-Tasman Proceedings Act 2010 (Cth) which, again, affords special status in Australia in respect of New Zealand proceedings. ...": TPTN v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 788, [1].
"First, the Trans-Tasman Mutual Recognition Act 1997 (Cth) and the Trans-Tasman Mutual Recognition Act 1997 (NZ) confer a right on a legal practitioner of one country to practise as a legal practitioner in the other country. Thus, the Government of New Zealand has recognised the competence of an Australian legal practitioner to appear in New Zealand courts in a proceeding involving the application of New Zealand common law to a claim for damages for negligence for personal injury. If an Australian legal practitioner has that legal competence, should an Australian court readily shrink from the ascertainment and application of New Zealand’s common law? ...": Robinson v Studorp Ltd [2013] QSC 238, [24].
Issue with employed Barristers in NZ with supervision condition not being equivalent to Barrister occupation in Victoria: Little and Victorian Bar Inc [2024] AATA 2852; and in NSW, WA and ACT: Little and The Council of the New South Wales Bar Association [2024] AATA 497.
Queensland Solicitor, under condition of supervised legal practice, seeking registration in NZ under TTMRA -- equivalence of occupation in NZ established:
> "In Re Dabas,[59] the High Court of New Zealand was asked to determine an application made under the New Zealand TTMRA by a solicitor who held a practising certificate issued by the Queensland Law Society authorising him to engage in supervised legal practice. The legislative regimes of New Zealand and Queensland were compared by Cull J, her honour explaining: [24] There are two types of practising certificates issued in New Zealand, either as a barrister, or as a barrister and solicitor; and two categories of those two types of practising certificates, either in practice on own account, (which is equivalent to an unrestricted principle practising certificate in Australia) or as an employee (which is equivalent to a restricted practising certificate with a condition regarding supervision). … [25] Although statutory conditions are not specifically stated on the physical practising certificate itself, equivalent restrictions apply under the provisions of the LCA and the associated rules and regulations. [26] Under s 30 of the LCA, no lawyer may commence practice on own account unless approved to do so by the Law Society or the High Court. In order to be approved to practice on own account, an applicant must meet the requirements set out in regulation 12 (or regulation 13 if applying to the High Court for leave to practice on own account) of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008. [59] [2019] NZHC 1940.": Little and The Council of the New South Wales Bar Association [2024] AATA 497, [103].
> Carter Dabas [2019] NZHC 1940, [29]-[31] <https://www.nzlii.org/nz/cases/NZHC/2019/1940.html>: "[29] From the comprehensive submissions detailed by the New Zealand Law Society, I am satisfied that the status of the Queensland Law Society practising certificate for Mr Carter Dabas meets the requirement under s 19 of the Act, that Mr Carter Dabas has an equivalent occupation to enable registration to occur. [30] Accordingly, Mr Carter Dabas is entitled to admission as a barrister and solicitor of the High Court of New Zealand and, following his admission, is entitled to apply for a practising certificate as an employed barrister, or as an employed barrister and solicitor. [31] Mr Carter Dabas’ application under s 19 of the Trans-Tasman Mutual Recognition Act 1997 to be admitted as a barrister and solicitor of the High Court of New Zealand is granted.". --- decision undisturbed by later judicial review application in Little v New Zealand Law Society [2021] NZHC 1928 (see also, Little v New Zealand Law Society [2022] NZCA 121 (summary of the legal framework to be admitted under the TTMRA and practice in NZ, esp [35], [61]-[72]); undisturbed in Little v New Zealand Law Society [2022] NZSC 78.
Table of Equivalence: NZLS: <https://nzcle.org.nz/Docs/Trans-Tasman_Mutual_Recognition.pdf>, archived at <https://web.archive.org/web/20250219202709/https://nzcle.org.nz/Docs/Trans-Tasman_Mutual_Recognition.pdf>.
Whether equivalence can be achieved by conditions:
> NZ Barristers in NSW, WA, Vic and the ACT: Little and The Council of the New South Wales Bar Association [2024] AATA 497 -- no.
> NZ Domestic Builder in Victoria: Hughes and Victorian Building Authority [2025] ARTA 113 -- no; but see, for Queensland, McLeod and Queensland Building and Construction Commission [2019] AATA 143.
> Tax Agents: Aalders v Tax Agents’ Board of Queensland [2006] FCA 1442; Aalders and Tax Agents' Board of Queensland [2005] AATA 727.
MRA and TTMRA:
> "[86] Section 19(5) reposes power in a local registration authority to impose conditions on registration. In Victorian Building Authority v Andriotis [2019] HCA 22; (2019) 268 CLR 168 at 179 [29] (Andriotis), the High Court considers the powers under s 20(5) of the Mutual Recognition Act 1992 (Cth) (MRA) in regards to this very situation when a local registration authority imposes insurance conditions. The High Court confirms that s 20(5) of the MRA, which is in the same terms as s 19(5) of the TTMRA, permits the imposition of insurance conditions. At [28]–[29], the High Court says: The VBA submits that a person registered in the first State cannot be said to have an absolute entitlement to registration. This may be seen by the operation of s 17(2) with respect to a State law. The VBA gives as an example s 169(2)(e)(i) of the Building Act, which requires an applicant for registration under that Act to prove that they have insurance cover. Section 17(2) would permit that requirement to be imposed. The answer to the submission lies in the power given by the MRA to the local registration authority of the second State to condition registration under s 20(5). It may do so as long as the conditions are not more onerous than would be imposed in similar circumstances. The use of that power to condition would be consistent with the scheme of the MRA; satisfaction of a requirement of a State Act as a precondition to a grant would not. ... [88] Section 19(5) of the TTMRA provides the power to impose conditions on registration so long as they are not “more onerous than would be imposed in similar circumstances…if it were registration effected apart from this Part”. This section invites a comparison between conditions imposed under s 19(5) and conditions imposed in similar circumstances where registration is effected other than by Part 3 of the TTMRA. To use the case before me as an example, the insurance obligation imposed by s 19(5) as a condition of registration could not be more onerous than the insurance obligation imposed as a condition of registration on a barrister in Victoria under s 45 of the Uniform Law (Victoria). Section 19(5) operates to regulate the imposition of conditions on registration by requiring that they be no more onerous than local conditions.": Meagher and Victorian Bar Incorporated [2021] AATA 3445, [86], [88]; See also, Meagher and Victorian Bar Incorporated [2022] AATA 4415, [72].
Jurisdiction hopping:
> "... There is an anecdotal suggestion that the TTMR regime may allow jurisdiction hopping, that is, using TTMR registration to support applications for admission in other jurisdictions that treat New Zealand admitted applicants more favourably than Australian-admitted applicants or vice-versa. The Society is aware that in Auckland a number of applications for admission have been made by Australian practitioners with no current intention to practise in New Zealand. Indeed of the 16 admitted last year under TTMRA just 5 applied for and were issued practising certificates. It was reported that at least some of those were seeking admission in New Zealand to assist their path to qualifying in Ireland. It appears that while there is no direct admission to practise in Ireland for either NZ or Australian qualified lawyers, NZ-admitted lawyers can shortcut the requisite training/study process, particularly if they are relatively recent graduates. New Zealand-admitted lawyers are eligible to take the Qualified Lawyers Transfer Test, while Australian lawyers are required to undertake a full training process or at least seek an exemption from some of it, which could involve a traineeship, further examinations and vocational course. Hence it is advantageous for someone from Australia wishing to qualify in Ireland to be admitted in New Zealand first. This may not have been the intended result of the TTMR arrangement. It is a moot point as to whether moves could, or should, be taken to prevent this occurring. ...": 'Trans-Tasman Mutual Recognition Arrangement - Review of Progress' (NZ Law Society, 2003) <https://www.pc.gov.au/inquiries/completed/mutual-recognition-2003/submissions/new_zealand_law_society/sub017.pdf>, archived at <https://perma.cc/FJR3-E3AW>.
Statistics:
> inbound from NZ to AUS: "In terms of the Queensland legal profession, the 2020 National Profile tell us that between 2011 and 2020 the number of Queensland solicitors grew by 54%. In terms of the number of applications for admission in Queensland from law graduates, the LPAB Annual Report for the period 2020 to 2021 reveals that there has been an increase in admission numbers from 1,070 total admission applications (which include MRA – Mutual Recognition Applications and TTMRA – Trans Tasman Mutual Recognition Applications) in 2016/2017 to 1,333 total admission applications in 2020/2021. ...": 'The Job Readiness of Law Graduates and Entry Level Solicitors in Private Practice - Final Report' (QLS, Bond, 1 Dec 2022) <https://www.qls.com.au/getattachment/d6f794fa-7f09-4010-82c2-849974fbdaa3/qls-job-readiness-report-final-1-12-22-complete-version-.pdf>.
> Qld LPAB: 2019-2020 Annual Report: "In addition to the ‘local’ admission applications, the Board considered 11 applications for admission lodged under the domestic MRA or the TTMRA. ... 10 TTMRA": Legal Practitioners Admissions Board, 2019-2020 Annual Report, 18, Appendix 4 <https://www.qls.com.au/getattachment/3e0302c6-ad74-48f3-8735-5d40e5f6b16d/lpab-annual_report_2019-20__final-tabled-in-parliament-september-2020.pdf>.
> Qld LPAB: 2022-23 Annual Report: 25 TTMRA: See appendix 4 <https://www.qls.com.au/getattachment/c5c87922-d85a-4c1a-b245-b6cd47c0dd1e/annual-report-2022-2023-signed-18-september-2023-.pdf>.
> NSW LPAB: "This includes 21 New Zealand lawyers who were admitted pursuant to the Trans-Tasman Mutual Recognition Act 1997 (Cth), where an applicant applies directly to the Court.": LPAB of NSW Annual Report 2023-24, p 9 <https://lpab.nsw.gov.au/documents/annual-reports/LPAB_Annual_Report_2023-24.pdf>.
> LPBWA, 2022-23: 12 (including domestic MRA): LPBWA Annual Report 2022-23, p 26: <https://www.lpbwa.org.au/getmedia/190bbf1c-23af-4028-9e4a-653fd1de99b9/LPB-Annual-Report-22-23.pdf>; 2023-24: 9 : LPBWA Annual Report 2023-24, p 29 <https://www.lpbwa.org.au/getmedia/665562c7-1906-41f5-b24a-e78f7729c542/LPB-Annual-Report-23-24.pdf>.
> AUS outbound to NZ: 41 (2024), 42 (2023): 'Shaping Aoteroa's Legal Profession Together: Annual Report 2023/24' (NZ Law Society, 2024) 49 <https://www.lawsociety.org.nz/assets/About-Us-Documents/Annual-Reports/Recent-Annual-Reports/Annual-Report-2023-2024.pdf>, archived at <https://perma.cc/68KZ-SD5S>.