Disclosure Guidelines

LAW ADMISSIONS CONSULTATIVE COMMITTEE1 DISCLOSURE GUIDELINES FOR APPLICANTS FOR ADMISSION TO THE LEGAL PROFESSION IN WESTERN AUSTRALIA

Purposes of these Guidelines

In Western Australia the Legal Profession Uniform Law (WA) (Uniform Law) requires the Legal Practice Board (Board) to consider whether the applicant is “a fit and proper person” for admission to the legal profession.2 In considering whether a person is “a fit and proper person” to be admitted the Board must consider each of the specified matters, including whether the applicant is “currently of good fame and character”.3 Both these tests reflect the overarching requirements of the pre-existing common law. 

The purposes of these Guidelines are:

  • to bring home to applicants that Admitting Authorities and Courts and the Board place a duty and onus squarely on each applicant to disclose any matter that could influence the Board’s decision about whether the applicant is ”currently of good fame and character” and “a fit and proper person”
  • to remind applicants that failure to do so, if subsequently discovered, can have catastrophic consequences for an applicant. An applicant might either be refused admission, or struck off the roll, if the applicant has been admitted without making a full disclosure. 

There are many judicial explanations of what the phrase “fit and proper person” means in different contexts.4 For example: 

The requirement for admission to practice (sic) law that the applicant be a fit and proper person, means that the applicant must have the personal qualities of character which are necessary to discharge the  important and grave responsibilities of being a barrister and solicitor. A legal practitioner, upon being admitted to practice, assumes duties to the courts, to fellow practitioners as well as to clients. At the heart of all of those duties is a commitment to honesty and, in those circumstances when it is required, to open candour and frankness, irrespective of self interest or embarrassment. The entire administration of justice in any community which is governed by law depends upon the honest working of legal practitioners who can be relied upon to meet high standards of honesty and ethical behaviour. It is the legal practitioner who is effectively the daily minister and executor in the administration of justice when advising clients, acting for clients, certifying documents, and making presentations to courts, governments, other professionals, and so on. The level and extent of trust placed in what legal practitioners say or do is necessarily high and the need for honesty is self evident and essential.5 

Status of these Guidelines 

These Guidelines do not, and cannot, diminish or supplant in any way an applicant's personal duty to disclose any matter which may bear on the applicant's fitness for admission. They merely provide information about how Admitting Authorities, Courts and the Board approach the requirement of disclosure. They also give examples of matters which an applicant might otherwise overlook when deciding what to disclose. 

It is important to understand that any matter bearing on an applicant's fitness should be disclosed, whether or not that matter is mentioned in these Guidelines. It is thus prudent to err on the side of disclosing, rather than concealing, information which may turn out to be relevant in the eyes of an Admitting Authority or a Court or the Board. 

Relevant principles

Admitting Authorities and the Board apply the following principles when determining an applicant’s fitness for admission. 

  • The onus is on an applicant to establish fitness. 
  • The statutory test is cast in the present tense – whether an applicant “is currently of good fame and character” and "is a fit and proper person". Past conduct, though relevant, is not decisive. 
  • The candour demonstrated in any disclosure by an applicant is highly relevant when determining present fitness. High standards are applied in assessing the candour of any disclosures. Full and frank disclosure is essential, although in most circumstances disclosure of past indiscretions will not result in an applicant being denied admission. 
  • An applicant’s present understanding and estimation of the applicant's past conduct is relevant. 
  • If an applicant makes a full disclosure of a condition relevant to the applicant's capacity and demonstrates that the condition is appropriately managed, it is highly unlikely that the disclosure will lead to an adverse assessment of the applicant's suitability for admission.
The duty of disclosure

An applicant for admission is required to disclose, in the application, any matter which might be relevant to the Board in considering whether the applicant is currently of good fame and character and is a fit and proper person for admission to the legal profession. The applicant must state whether any of the specified matters set out in Appendix 1 apply to the applicant. This requirement reflects the statutory obligation of the Board. 

Further, any other matter that might be relevant to a decision by an Admitting Authority, Court or the Board about whether the applicant is a fit and proper person for admission should also be disclosed. Recent cases demonstrate that the Courts believe there is an increasing expectation that any matters relevant to the assessment of an applicant’s honesty will be disclosed. 

If an applicant discloses no matters relevant to fitness for admission, the application must contain the following statement: 

I have read and understood the Disclosure Guidelines for Applicants for Admission to the Legal Profession. I am and always have been of good fame and character and am a fit and proper person to be admitted and I have not done or suffered anything likely to reflect adversely on my good fame and character or on whether I am a fit and proper person. I am not aware of any matter or circumstance that might affect my suitability to be admitted as an Australian lawyer and an officer of the Court.

Unfortunately it is not possible to provide applicants with an exhaustive list of all matters which can turn out to be relevant to assessing whether an applicant is currently of good fame and character, or a fit and proper person for admission, and which therefore should be disclosed. 

Stated in general terms, however, the duty of disclosure extends to any matter which reflects negatively on the applicant’s honesty, candour, respect for the law or ability to meet professional standards. An applicant should provide a full account of any such matter in the applicant’s disclosure, including a description of the applicant’s conduct. The description should not be limited merely to listing criminal charges or other consequences of the conduct. As already noted, there is an increasing expectation that any matters relevant to assessing an applicant’s honesty will be disclosed. 

An applicant should also avoid editing, or selecting only those matters which the applicant believes should be relevant to the decision to be made by the Board. Rather, an applicant should disclose every matter that might fairly assist the Board in deciding whether the applicant is a fit and proper person. 

Revealing more than might strictly be necessary counts in favour of an applicant - especially where the disclosure still carries embarrassment or discomfort. Revealing less than may be necessary distorts the proper assessment of the applicant and may itself show an inappropriate desire to distort by selecting and screening relevant facts.6 

Matters which an applicant may need to disclose

The following are examples of matters which an applicant may need to disclose in addition to the statutory specified matters set out in Appendix 1:

Criminal conduct 

Under r. 10(1)(h) of the Legal Profession Uniform Admission Rules (2015) (Admission Rules)(refer Appendix 1), all criminal convictions must be disclosed. This includes all spent convictions7. 

In addition, an obligation to disclose a criminal charge, as distinct from a criminal conviction, may arise, even if charges were subsequently withdrawn or the applicant was acquitted. The fact that an applicant’s character has been brought into question may be sufficient to give rise to a need to disclose in the eyes of the Board. 

It is usually inadequate for an applicant disclosing criminal conduct merely to list the relevant charges and convictions. An applicant needs to explain, in the applicant's own words, the circumstances giving rise to the charge or conviction. 

Whether or not a criminal charge (as distinct from a conviction) should be disclosed will depend on the circumstances. If the charge did not proceed for a technical reason, such as the expiration of a time limit, disclosure may be required. On the other hand, if the charge was denied and the matter did not proceed because of an acknowledged lack of evidence, disclosure may not be necessary. 

An applicant should carefully consider whether the facts giving rise to a criminal charge are such that the Board might reasonably regard them as relevant in assessing the applicant's suitability for admission. 

Intervention orders and apprehended violence orders 

Infringement Offences

 Offences resulting in a court-ordered fine or other sanction or else an administrative penalty, such as traffic or public transport offences, may need to be disclosed in circumstances where the frequency or number of fines, or the failure to pay fines, may give rise to concern in the eyes of the Board about the applicant’s respect for the law. 

Traffic Offences 

See item (c) above. 

Academic Misconduct

Academic misconduct may need to be disclosed. It will generally be prudent to disclose such conduct whether or not a formal finding was made or a record of the incident retained by the relevant organisation (see also r. 10(1)(d) of the Admission Rules). 

Academic misconduct includes, but is not limited to, plagiarism, impermissible collusion, cheating and any other inappropriate conduct, whereby the applicant has sought to obtain an academic advantage either for the applicant or for some other person. 

General Misconduct 

An applicant may need to disclose misconduct which occurred in a workplace, educational institution, volunteer position, club, association or in other circumstances, if such conduct may reflect on whether the applicant is a fit and proper person to be admitted to the legal profession. 

General misconduct may include, but is not limited to, offensive behaviour, workplace or online bullying, property damage, sexual harassment or racial vilification.8 

Making a false statutory declaration 

Social security offences 

(see also r. 10(1)(h) of the Admission Rules). 

Tax Offences 

(see also r. 10(1)(h) of the Admission Rules). 

Corporate insolvency or penalties and offences relating to a corporate entity where the applicant was a director or responsible officer 

(see also r. 10(1)(g) of the Admission Rules).

Certificates of character

Please also note that any person who supplies a certificate of character to support an application: 

  • must be aware of any disclosure of the type mentioned above that is made by the applicant
  • must attest to that knowledge in the person's certificate of character. 

Because of the privacy implications of disclosures about an applicant’s capacity, a person who supplies a certificate of character need not be aware of any disclosure about the applicant's capacity: see item 7. 

Disclosures about capacity 

An Admitting Authority is also required to consider whether an applicant has the present capacity to carry out the tasks of a legal practitioner. At common law, the principle is as follows: 

To be a fit and proper person for admission to the legal profession an applicant must possess the capacity to make the judgments necessary to meet appropriate professional standards in legal practice or otherwise ‘discharge the important and grave responsibilities of being a barrister and solicitor’.9 

The requirement of capacity is separate and distinct from the requirement that an applicant be a fit and proper person or of good fame and character. 

The Admission Rules describes matters relating to an applicant’s capacity as “specified matters” about which the Board must satisfy itself, including “whether the person is currently unable satisfactorily to carry out the inherent requirements of practice as an Australian legal practitioner”; 10 

It is not clear whether the requirement to take into account the “specified matters” displaces the underlying common-law principles. Furthermore, one of the “specified matters” is “whether the person is currently of good fame and character”.11 The Board “may have regard to any matter relevant to the person’s eligibility or suitability for admission .12” 

At common law, an applicant who is otherwise qualified to practise is presumed to have capacity to practise unless the contrary is established. Nevertheless, quite apart from making disclosures which respond to a “specified matter”, it will often be prudent for an applicant to disclose any other matters which the Board might think relevant when assessing an applicant’s present capacity to engage in legal practice. 

Matters which an applicant might disclose include any condition which might affect the applicant's present ability to engage in legal practice - such as physical impairment, mental illness or addictions. 

The Board assesses each applicant’s capacity individually, in the light of the applicant’s particular disclosures and any other supporting information. Such information should include any historical or current medical evidence submitted by the applicant. For this reason, if an applicant discloses a condition which the Board may consider relevant to the applicant’s present capacity to practise law, it will be prudent also to provide a report from an appropriately-qualified medical practitioner relevant to the condition disclosed. If an applicant seeks to demonstrate that the relevant condition is appropriately managed and stable, a certificate to that effect from one or more of the applicant's treating medical practitioners would greatly assist the Board. 

Except for the purposes of the administration of the Uniform Law , the Board must not disclose any personal or medical evidence disclosed to it by or on behalf of an applicant. 

For privacy reasons, a disclosure about capacity may be made in a separate statutory declaration lodged with an application. 

Specified matters prescribed by the Admission Rules

An applicant must disclose any matter relevant to a specified matter prescribed by the Admission Rules The specified matters prescribed for Western Australia are set out in Appendix 1. 

Please note that the requirement to disclose convictions includes a requirement to disclose spent convictions.13

Form of disclosure

Any disclosure which an applicant is required to make must be included in a statutory declaration lodged with the applicant’s Notice of Application for Admission (LPB Form A10) or, in the case of a disclosure about capacity, in a supplementary statutory declaration, if the applicant prefers. Each disclosure should be supported by any available supporting documents, to corroborate the disclosure. Each such document should be made an exhibit to the statutory declaration.

Appendix 1

SPECIFIED MATTERS PRESCRIBED BY THE LEGAL PROFESSION UNIFORM ADMISSION RULES 2015 

As noted in items 4 and 8 of the Guidelines, the Board is required to satisfy itself about each of the following matters in relation to each applicant. Accordingly an applicant needs to disclose anything that the Board might consider relevant when satisfying itself about each of these matters. 

Rule 10(1) of the Admission Rules, provides that 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: 

  1. any statutory declaration as to the person’s character, referred to in rule 16 of the Admission Rules
  2. any disclosure statement made by the person under rule 17 of the Admission Rules
  3. any police report provided under rule 18 of the Admission Rules
  4. any student conduct report provided under rule 19 of the Admission Rules
  5. any certificate of good standing provided under rule 20 of the Admission Rules
  6. whether the person is currently of good fame and character
  7. 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
  8. whether the person has been found guilty of an offence including a spent offence in Australia or in a foreign country, and if so:
    1. the nature of the offence, and
    2. how long ago the offence was committed, and
    3. the person’s age when the offence was committed
  9. 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
  10. 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
  11. whether the person is currently unable satisfactorily to carry out the inherent requirements of practice as an Australian legal practitioner
  12.  whether the person has a sufficient knowledge of written and spoken English to engage in legal practice in this jurisdiction.

Annexure B – Certificate of Good Fame and Character – LPB Form A10.2

 [Certificates from two referees are required. The referee can complete, sign and email a copy directly to admissions@lpbwa.com OR The referee can complete and sign an original copy and the applicant can deliver the originals] 



1 LACC'S Charter is approved by the Council of Chief Justices which also appoints its Chairman. LACC is not, however, a committee of the Council, nor does it act on the Council's behalf. 

2 Uniform Law ss 15(a) and 17(1)(c) 

3 Legal Profession Uniform Admission Rules 2015 r 10 . 

4 Frugtniet v Board of Examiners [2002] VSC 140; Frugtniet v Board of Examiners [2005] VSC 332; XY v Board of Examiners [2005] VSC 250; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Re Legal Profession Act 2004; re OG, a lawyer [2007] VSC 520;Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279;Incorporated Law Institute of NSW v Meagher (1909) 9 CLR 655;Re Lenehan [1948] HCA 45; Re Evatt; Ex Parte NSW Bar Association (1967) 67 SR (NSW) 236;In the matter of an application for admission as a legal practitioner [2004] SASC 426; In re Davis [1947] 75 CLR 409;New South Wales Bar v Murphy (2002) 55 NSWLR 23;New South Wales Bar Association v Cummins (2001) NSWLR 279; New South Wales Bar Association v Hamman [1999] NSWCA 404; Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320; Prothonotary of the Supreme Court v Alcorn [2007] NSWCA 288; New South Wales Bar Association v Einfeld (2009) 259 ALR 278; In the matter of the Legal Practitioners Act 1970 and in the matter of an application by Hinds [2003] ACTSC 11;In the matter of an application for admission as a practitioner [1997] SASC 6487; Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338; Legal Services Board v McGrath [2010] VSC 266 

5 Frugtniet v Board of Examiners [2002] VSC 140 per Pagone, J

6 Frugtniet v Board of Examiners [2002] VSC 140, per Pagone J. 

7 Spent Convictions (Act Amendment) Regulations 2014.

8 By way of illustration, in XY v Board of Examiners [2005] VSC 250, Habersberger, J found that an applicant was under a duty to disclose that a volunteer position had been terminated as a result of making offensive remarks to a fellow worker and that she was also required to disclose property damage she had caused at a meditation retreat, notwithstanding that charges were not laid. 

9 Frugtniet v Board of Examiners [2002] VSC 140 per Pagone J. 

10 Admission Rules r. 10(1)(k) . 

11 Admission Rules r. 10(1)(f). 

12 Uniform Law s. 17(2)(a) . 

13 Spent Convictions (Act Amendment) Regulations 2014.