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Cross-jurisdictional study and the realities of practice: Part I

Cross-jurisdictional study and the realities of practice: Part I

Posted by justis1 | 16 July 2014

David Heaton, a graduate from the University of Melbourne, currently studying the BCL (Bachelor of Civil Law) at Oxford University, is one of an increasing number of Australian postgraduates tempted to a career at the English bar.

Having studied combined degrees of Law and Arts (majoring in German), David worked at King & Wood Mallesons, Boston Consulting Group and as an associate to Justice Kenneth Hayne AC at the High Court of Australia, before moving to England and beginning the BCL. We spoke to David to discuss the differences in the English and Australian legal scenes and the challenges of cross-jurisdictional qualification.

Boomerang Austrlian barrister at English Bar England

The changing shape of the bar

The overlap and differences between English and Australian Law

Australian postgraduate students are to an extent already familiar with English law. David states that “a good half of the cases read in my undergraduate degree would have been English”. Areas such as equity and contract in particular have a great overlap.

However, the variances of the English court structure still need to be learnt. For David, working as an associate for Justice Kenneth Hayne AC in the High Court, he had to “look at the precedential value of a case” and in doing so learnt about the English legal structure.

Whilst in the High Court David observed first-hand the “divergence recently in law” in terms of “judges’ attitudes to English precedents”: in the earlier half of the Twentieth Century, Australia had a strong tendency to follow English decisions; from the sixties onwards this has been changing. David notes that the change is in part because “the real landscapes have become quite different,” with more and more English decisions being made that simply aren’t applicable to Australia.

This is most notable in reference to the Human Rights Act 1998 (HRA) and the integration of European elements into English law. The engagement of Europe in English law and the status given to human rights is not one reflected in Australia. However, it is this difference that often attracts students to study in England, offering the chance to examine more deeply the human rights arena.

Starting a practice in London versus starting one in Melbourne

As David looks to complete his BCL and embark on pupillage, the route into practice with a London set differs substantially from the operation of chambers in Melbourne.

While there is fierce competition in London, pupillage at a commercial set comes with a guarantee of a certain wage for the year. The collegiate atmosphere of chambers can be appealing, as can the continuous and sustained nature of a tenancy within chambers. In addition to guidance from the pupil supervisor, there remains the opportunity to work under others.

In Melbourne, barristers join a list, with the clerk running the list directing practitioners to work. The selection process for a list is akin to selection for English chambers, with a committee of clerks and barristers deciding who makes the list. In Melbourne alone there are eight or nine lists, two or three of which are strong commercial lists.

David states that it is thus, to an extent, less significant which chambers you are a member of; the emphasis is rather on which list you join. While pupil barristers still read under a tutor for nine months, barristers tend to be seen more as sole practitioners with independent practices, and moves between chambers are much more frequent than in England. Because of this, David says that you “want to find a tutor who has a practice profile you want to take,” as your practice is likely to echo theirs. The reading period is unpaid, though pupils can begin to take their own briefs.

The next step: qualifying in England

While most BCL students looking to a career at the bar have already completed or are set to embark on the Bar Professional Training Course (BPTC), David is currently in the process of applying for pupillage. With an LLB from Australia, an English postgraduate qualification, and given that there is a lot of “overlap between the professional diploma you do in the first year of working at a firm in Australia and the BPTC,” he may be exempted from certain exams on the BPTC. However, as with all cross-jurisdictional qualifications, the Bar Standards Board (BSB) make decisions on a case by case basis.

David sees himself in London for a long time to come on successful completion of pupillage. But what would be the case if he wanted to practise in Australia?

Having practised for several years in England it may be possible to go straight on a list without reading under a barrister. However, David points out that there are reasons to read other than just learning how to be a barrister. Even having built up a successful practice in a foreign jurisdiction, reading provides the opportunity to establish new connections with QCs and solicitors. In any case, a barrister having practised in England for three or four years should find admittance to the Australian bar straightforward.

As the landscapes between Australia and England continue to change, with European influences on English case law increasing (referenda aside!), and the Australian courts following English law less frequently, it may be that future Australian graduates have a lesser knowledge of English law.

Whether this will impact on their decisions to practise cross-jurisdictionally can only be guessed. But current graduates already familiar with English law have a clear route for practice in England and can be reassured that should they subsequently choose to practise in Australia, admittance to the bar remains a straightforward option.

To read our blog interview with an Australian graduate now practising at the English bar click here.

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