Abstract
Legal histories of Australia have largely overlooked the exclusion of European émigré lawyers from legal practice in Australia. This article recovers part of this forgotten history by tracing the drawn-out legal admission bids of two Jewish émigré lawyers in the mid-20th century: German-born Rudolf Kahn and Austrian-born Edward Korten. In examining their legal lives and doctrinal legacies, this article demonstrates the changing role and requirement of British subjecthood in the historical constitution and slow cultural transformation of the Australian legal profession. This article suggests that contemporary efforts to promoting cultural diversity in the Australian legal profession are enriched by paying attention to this long and difficult history of legal exclusions.
I Introduction
Cultural diversity within the Australian legal profession has rightly become a growing concern. In 2018, the NSW Bar Association initiated a survey of its members for the first time to better understand the Bar’s demographic composition. Whilst the survey results indicated an emergent cultural, linguistic and gender diversity among practising barristers in NSW, they also starkly demonstrated that the NSW Bar ‘remains a long way from being representative of the state’s population as a whole’. 1 Similar earlier surveys of the Victorian Bar and the Australian legal profession on a national level have produced comparable data that points to an enduring lack of cultural diversity. 2 Taken together, this data invites an inquiry into the historical, legal and institutional factors that have resulted in an overwhelmingly culturally homogenous legal profession to date in Australia.
This article sheds light on one specific but critical barrier that acted as a significant and long-standing legal exclusion mechanism against émigré lawyers migrating to Australia from outside of the British Empire. This barrier is the requirement that candidates for admission to legal practice needed to be British subjects. This requirement was first imported from England and applied by Australian colonial superior courts from their inceptions in the early to mid-19th century. Yet, unlike in England where so-called ‘alien’ lawyers were admitted to legal practice from 1868 onwards, this requirement of British subjecthood remained in place in all Australian states until the mid-1970s. This requirement was first removed in 1975 in South Australia, and as late as 1978 in Victoria. To date, this requirement of British subjecthood has received very little scholarly attention. Yet, as this article demonstrates, this requirement had vital implications for the ability of non-British émigré lawyers to practice in Australia. In particular, it became a key mechanism of professional exclusion in the aftermath of World War II as European migration to Australia significantly increased through state-assisted European settler migration schemes that saw the progressive dismantling of the notorious White Australia policy by 1973.
This article demonstrates the significance of this requirement through the case studies of two Jewish émigré lawyers who sought admission to practice in the late 1930s and early 1940s in Victoria and NSW respectively: German-born Dr Rudolf Kahn and Austrian-born Dr Edward (Eduard) Korten. Both men were highly qualified and experienced lawyers, who had practiced in jurisdictions spanning London, Berlin, Vienna and Shanghai. Both men arrived in Australia with their immediate families within two months of each other, in November 1938 and January 1939 respectively. Both had escaped the Nazi persecution of Jews in Germany and occupied Austria, including Nazi laws disqualifying them from legal practice and stripping them of their citizenship. Both men applied for legal admission soon after arriving in Australia, but both were refused a practicing certificate by the respective legal admission bodies on the basis that neither man was a British subject. Both men appealed these decisions to the Australian High Court, and in each instance, the High Court effectively upheld the power of the state legal admissions body to refuse to admit so-called ‘aliens’. 3
Whilst both Kahn and Korten would eventually gain admission to legal practice in 1940 and 1944 respectively following their naturalisations, recovering and recalling their stories illustrates three things in particular. First, it highlights the racial ‘gatekeeper’ function played by statutory bodies such as the Council of Legal Education in Victoria and judicial entities such as the Barristers' Admission Board in NSW in a very concrete way, and vividly shows the personal costs that such legal discriminations and exclusions had on two individual émigré lawyers. Second, it demonstrates how European émigré lawyers navigated and challenged the legality of their exclusion from legal practice in ways that sought to make the relevant legal profession admissions rules more open to cultural diversity, even if these rules in turn hardened in direct response to such legal challenges. And third, unpacking the legal worlds, exclusions and professional networks that Kahn and Korten encountered, navigated and inhabited upon arrival in Australia allows for better understanding the history of the cultural constitution of the Australian legal profession.
Mark Lunney has described the influence of European émigré scholars on Australian torts law as a ‘forgotten history’. 4 In a similar vein, this article suggests that the arrival and contributions of European émigré lawyers to a nascent cultural diversity within the Australian legal profession remains profoundly understudied and overlooked. Although scholars elsewhere have recognised the reception and legacies of Jewish refugee lawyers in jurisdictions like the UK and US, to date, no such sustained attention has been paid in Australia. 5 This article offers the first analysis of how European émigré lawyers from outside the British Empire historically tested and negotiated the legal requirements for entry into the Australian legal profession in the mid-20th century. My aim is to recover and remember the specific legal lives and legacies of two émigré lawyers who have previously not received any significant scholarly attention nor recognition within the narration of Australian legal history.
Their ‘lives with the law’ were at times highly remarkable and unusual, but also pedestrian and ordinary. 6 As legal historians have shown, legal biography as a historical method has the capacity to ‘disrupt and reform conventional understanding about law and society, lawyers and legal processes’. 7 Charting their admission to legal practice bids allows us to appreciate how these émigré lawyers became their own advocates, forging connections with an astonishing array of local legal elites, creating impressive improvised transnational networks and regularly corresponding with Australian government authorities, at first in relation to advocating their own cases and later concerning questions of naturalisation and restitution on behalf of their fellow Jewish refugees and Holocaust survivors. This article thus contributes to broader understandings of the contributions and legacies of European émigré lawyers, scholars and jurists to Australian legal jurisprudence, institutions and cultures, whilst also paying attention to their challenges and adaptation in the face of new legal worlds, institutional habits and professional exclusions.
This article is divided into three substantive parts. Part II provides a brief historical overview of the rules governing entry into the legal profession in colonial NSW and Victoria so as to understand the particular way that the requirement for British subjecthood came to be translated into Australian legal practice by the mid-20th century. Part III depicts the historical, political and legal factors that shaped the emigration and reception of European émigré lawyers, and Jewish refugee lawyers in particular, in Australia in the late 1930s. It then narrates in detail the stories of German-born Kahn and Austrian-born Korten in their prolonged endeavours to gain admission to legal practice in Melbourne and Sydney respectively. It demonstrates how the requirement of British subjecthood functioned to initially exclude both lawyers from their profession and cause them considerable personal hardship. Finally, Part IV sketches the enduring legacies in legal doctrine and practice of the Kahn and Korten High Court decisions, explaining how and why the requirement of British subjecthood was eventually removed across all Australian jurisdictions in the mid-to-late 1970s. Ultimately, this article suggests that the Australian legal profession today ought to pay greater attention to the cultural legacies stemming from the past legal exclusions faced by non-British émigré lawyers, in order to understand and remedy how these exclusions have intersected with and structured the racial, ethnic and cultural composition of the Australian legal profession across generations of lawyers.
II A Brief History of Legal Admission from the Colonial to the Interwar Period
Legal scholarship on the history of the Australian legal profession has sought to challenge the assumed homogeneity of its members. Rob McQueen’s work on Victorian lawyers between 1890 and 1940, for example, foregrounds two ‘deep divisions’ 8 in the profession: namely, between barristers and solicitors and between urban and rural practitioners. McQueen outlines how these fault lines gave rise to rival professional associations and proposals for regulating the profession. 9 Similarly, David Weisbrot’s earlier historical survey of the Australian legal profession highlighted the structural divisions within the profession on the basis of geography, competencies, seniority, institutional affiliations, class and gender. 10 Importantly, Weisbrot recognised the profession’s overwhelming ethnic homogeneity from its origins until the late 1980s; however, he largely depicted this homogeneity as an inevitable historical fact stemming from Australia’s British legal inherence, rather than the product of a series of enacted legal rules, specific court decisions and legal contestations. 11 By and large then, historical analyses have emphasised the internal tensions within the Australian legal profession, whilst taking for granted or overlooking the specific history of the making and maintenance of the legal profession as a culturally and racially homogenous enterprise within a settler colonial context.
Although the term ‘British subject’ did not neatly map onto historically-contingent racial categories such as whiteness, 12 nonetheless when intersecting with other forms of social hierarchy and exclusions such as class, religion and gender, the requirement that Australian colonial lawyers needed to be British subjects can be seen to be a racial one. In practice, it became a racial category both in its intended exclusions and in its overwhelming effects. Historians Marilyn Lake and Henry Reynolds have shown how such projects of racial exclusion were transnational in nature. 13 Indeed, the requirement of British subjecthood for entry into the legal profession existed elsewhere across the British Empire including in Canada and New Zealand. 14 However, this article focuses on how such projects manifested in two Australian states: Victoria and NSW, even though similar rules existed in other Australian states. 15 In the Australian context, this requirement of British subjecthood was a specific means to exclude Chinese immigrants who arrived in colonial Victoria and NSW during the gold rush from 1850s onwards.
This manifestation of racial exclusion can be seen in the early constitutions of the legal profession and the legal admissions criteria in colonial Victoria and NSW. In NSW, there was no formal nationality requirement; however, in practice, the first lawyers admitted by the NSW Supreme Court were British settler barristers who had already been admitted in the UK. This reliance on British-trained lawyers was formalised in 1829, when the NSW Supreme Court ruled that barristers could not be admitted unless they had been called to the Bar in the UK or Ireland. In contrast, a person could be admitted as a NSW solicitor if they had been admitted in the UK or Ireland; had undertaken a three- or five-year clerkship in England or NSW respectively; or had served a five-year term as clerk of the NSW Supreme Court. 16 The distinction would prove controversial, as it was not until the passing of the Barristers Admission Act 1848 (NSW) that locally-trained barristers were eligible for admission to the NSW Bar.
At the time, in England, there was no legislation regulating the admission of barristers. 17 Instead, as professional societies, the four Inns of Court could determine their own membership, educational requirements and examination processes. None of these Inns specified any requirements around nationality, 18 although candidates for legal practice had to swear an oath of allegiance, something that was considered to prohibit admitting non-British subjects. 19 The passing of the Promissory Oaths Act 1868 (UK) abolished this oath for English barristers and opened the way for so-called ‘alien’ lawyers to be admitted to practice. In the following years, students from parts of America, Africa, Europe and later Japan were able to be admitted to study at the Inns and eventually join the English bar. 20
In contrast, the Victorian Supreme Court within its first two years of operation as a separate colonial court adopted the explicit requirement that all candidate for admission to legal practice were required to be natural-born or naturalised British subjects. 21 Like NSW, the Victorian Bar was initially entirely reliant upon UK-trained barristers, and it was only in 1859 that Henry Lawes was admitted as the first locally-trained barrister. 22 Richard Harrison has documented how all 19thcentury lawyers working in the colony of Victoria were of ‘European ancestry’. 23 Harrison estimates that, of a sample size of 402 barristers called to the Victorian Bar over the 19th century, only 9 barristers (less than 2 per cent) were from what he labels ‘non-Anglo’ background. 24
The lack of diversity within the legal profession did not reflect the cultural pluralism, racial heterogeneity or linguistic diversity of Australian colonial society or even within colonial courts. Nadia Rhook has described the pre-Federation Victorian Supreme Court as a ‘polyglot linguistic theatre’
25
that frequently captured the public attention. Rhook writes that: In the racially stratified courts, the veneer of equality meant that speakers of languages other than English participated in legal proceedings, albeit as witnesses, defendants or interpreters rather than as jurors, lawyers or magistrates. Consequently, court participants regularly heard the sounds of Sam Yup, Sy Yup, Henshong, Hindi, French, Norwegian, Swiss French, various forms of Pidgin, English, Pashtu, Italian, Arabic and Urdu, among yet more languages.
26
The fusion of the Victorian legal profession in 1892 simplified the Victorian admission process, with all legal practitioners deemed to be admitted from then on as both barristers and solicitors of the Supreme Court of Victoria. 27 A further significant change to the authority over legal admissions in Victoria occurred in 1903, with the establishment of the Victorian Council of Legal Education under the Legal Practitioners Reciprocity Act 1903 (Vic). The Council was initially empowered to make and alter rules for the admission of barristers and solicitors in Victoria, including legal practitioners who were duly admitted in other Australian states or in the ‘superior courts of England, Scotland or Ireland’. 28 In 1915, the Victorian Council of Legal Education defined the term ‘candidate’ for legal admission to be a ‘natural born or naturalised British subject’. 29
Conversely, in NSW, it was not until 1942 that specific rules came into effect that explicitly stipulated that candidates for legal practice needed to be British subjects. In NSW, the legal profession has largely remained split between barristers and solicitors since its establishment, a division that was first introduced in 1829 by the NSW Supreme Court and confirmed through the subsequent Barristers Admission Act 1848 (NSW). This division has in turn been reflected in the Court’s administration of separate Barristers’ and Solicitors’ Admission Boards, established in 1848 and 1877 respectively, each with their own rules pertaining to admission to legal practice. 30 Also, unlike Victoria, the NSW Supreme Court maintained its authority over the creation of legal admissions rules up until the uniform reform efforts of 2014.
The most radical change to occur in the decades after Federation was the admission of women to legal practice. Yet, whilst the so-called ‘feminisation’ of the legal profession had far-reaching implications for its collective identity and material constitution, it did not necessarily challenge the profession’s underlying racial homogeneity. There were some notable exceptions in the inter-war period to this making of a racially homogenous profession. In Victoria, the admission of William Ah Ket in 1902 was reported under the heading of ‘A Chinese Barrister’, even though Ah Ket was born in Wangaratta, Victoria, to parents who had emigrated from China. 31 Similarly, in March 1924, Eugene Gabriel Sayegh’s admission to the NSW Bar was reported as the ‘first’ and ‘only Syrian barrister practicing in the Commonwealth’. 32 This was despite the fact that Sayegh was born in Auckland, New Zealand (and was thus a British subject for the purpose of legal admission), and had moved to Australia to complete his legal studies at the University of Sydney. A short profile on Sayegh entitled ‘Syrian from NZ who wears a barrister’s wig’ in Sydney’s notorious tabloid, Truth, the following year proclaimed that: ‘Foreign legal lights are few and far between in this country, so Mr Sayegh’s position is rather unique’. 33 A decade later, in May 1938, the admission of William Jangsing Lee would also be deemed newsworthy on the basis that Lee was the ‘first Chinese’ to be admitted to the NSW Bar. 34 Born in Sydney in 1912, Lee split his schooling between Sydney and Hong Kong, before graduating from a University of Sydney law degree in 1939. Whilst Lee would go on to practice for 45 years, his initial years were tough as the only barrister in Sydney of Chinese descent, with ‘very little work at the start’. 35 These admissions indicate that there was some nascent racial and cultural diversity within the Australian legal profession in the decades following Australian Federation. However, overwhelmingly the profession remained racially homogenous, reliant upon ideas of British subjecthood connected to transnational projects of whiteness, empire, imperial allegiance and settler colonial nation-building.
III Émigré Lawyers’ Admission to Legal Practice Bids
A Jewish Emigration, War and a Changing Professional Landscape
This section outlines the historical, political and legal factors that shaped the emigration, arrival and reception of European émigrés in Australia, and Jewish lawyers in particular, from the late 1930s. Following Hitler’s assumption of power in Germany at the start of 1933, the Nazi persecution of Jews, including Jewish lawyers, was swift and violent. Several prominent Jewish lawyers were targeted as state dissidents and arbitrarily arrested without charge under emergency laws enacted after the Reichstag fire. 36 In March 1933, the Reich Commissioner for the Prussian Administration of Justice issued a decree demanding that Jewish judges take a leave of absence from the judiciary and that local bar associations limit the number of Jewish lawyers allowed to appear in court. 37 An estimated 4585 Jewish lawyers were practising in Germany at the time and made up a significant portion of practising lawyers in metropolitan areas. 38 For example, of the 4300 lawyers practising in Berlin in 1933, around 43 per cent were Jewish. 39 This discrimination against Jewish lawyers was formalised through the passing of two laws in April 1933, one mandating the retirement of Jewish civil servants, including judges and academics, and the other allowing for the disbarment of ‘non-Aryan’ lawyers from legal practice. 40 These two laws were designed, as Morris Douglas has written, to ‘stamp the judicial system with the twin principles of racial superiority and Nazi political control’. 41 The subsequent purges saw more than 1200 academics dismissed from their university positions, with 650 of them emigrating to other European states including the UK. 42 Similarly, the number of practising Jewish lawyers in Germany dropped by around 30 per cent, although the majority of Jewish lawyers were able to reapply for admission under the limited exemption in the law for veterans. 43
On 30 November 1938, a few weeks after the mass murders, destructions of synagogues and vandalising of Jewish homes and businesses of the Kristallnacht pogrom, all German Jewish lawyers were officially disbarred from practice. 44 At the time, there were still around 1750 Jewish lawyers in Germany, constituting approximately 10 per cent of the profession. The German invasion and annexation of Austria in March 1938, and spread of fascism to Italy in the same year, further extended the persecution of Jews and application of Nazi race laws. In Austria, where Jewish lawyers made up approximately 60 per cent of members of the Viennese Bar, 45 the disbarment of Jewish lawyers had devastating effects. 46 Many were forced to flee, and others who stayed faced forcible deportation to concentration or death camps. The lawyers who did escape fascist Europe experienced significant difficulties in re-establishing their lives and professional livelihoods in exile.
In the early 1930s, Australia was not a major destination for Jewish refugees, or even non-Jewish European migrants, owing largely to the race-based immigration laws implementing the notorious White Australia Policy. 47 Quotas based on racial categories, enforced through the landing permit system, temporarily banned immigrants from Australia’s former enemy states (including Germany and Australia) and restricted entry from southern European states from the 1920s onwards, although Jewish migration to Australia remained minimal until late 1938. Government estimates suggest that only 100 Jewish people arrived in Australia in 1935. 48 Prompted by both growing antisemitism in Europe and the relaxation of Australian entry requirements in 1936, this would rise in subsequent years. 150 Jewish migrants arrived in 1936 and a further 500 in 1937. 49 Andrew Markus notes that, following the violent German annexation of Austria in March 1938, Australia House in London received 300 applications from Jewish people per week by May 1938, reaching 500 applications per week by August 1938. 50 In response, in June that year the Australian cabinet capped the number of Jewish immigrants to 5100 persons per year, subject to meeting the requirements of the landing permit system that required potential immigrants to pay a substantial fee and could involve undertaking a dictation test in any European language upon arrival. Such racial quotas and exclusion mechanisms prevented many Jewish people from seeking safety and refuge in Australia.
In addition, the requirements of naturalisation were a significant barrier for newly-arrived migrants, functioning in practice to exclude anyone not deemed desirable under the White Australia policy. 51 Under the Nationality Act 1920 (Cth), the naturalisation of an ‘alien’ required three criteria to be satisfied: first, a past residency requirement, with the applicant having ‘either resided in His Majesty’s dominions for a period of not less than five years…or been in the service of the Crown for not less than five years within the last eight years before the application’; second, a character and language test; and third, a future residency requirement. 52 Australia’s entry in World War II further restricted the eligibility of European migrants for naturalisation, with the Minister for the Interior deciding in November 1939 that so-called ‘enemy aliens’ would not be granted naturalisation except in exceptional circumstances such as in the case of ‘friendly’ refugees. 53 Further regulations under the National Security Act 1939 (Cth) provided broad powers for the registration, residency restrictions and internment of ‘enemy aliens’ as well as naturalised British subjects of ‘enemy alien origin’. At first, these regulations reflected a policy of targeted internment, with a total of 2745 people interned during 1940. Over the course of the war, however, this number, consisting of Italian, German, Japanese and other ‘enemy aliens’, would peak at 12,000 people in internment camps. 54
The arrival and exclusion of highly qualified Jewish refugees also affected other occupations, like the medical profession, albeit in different ways to the legal profession. Refugee doctors who were not British subjects were permitted to practice if approved by a specially-constituted Commonwealth Alien Doctors Board.
55
Whilst the issue of registering refugee doctors attracted considerable political debate and media coverage, there was some attention to the exclusions faced by refugee lawyers. An article in Perth’s Sunday Times, for instance, celebrated the contribution of German, Polish and Austrian refugees to dairy farms in Western Australia, including that of an ‘eminent European lawyer’ and another former Polish Crown solicitor who had been ‘rapidly making a name for himself’ before having to flee Poland.
56
Even when refugee lawyers sought legal work, they faced serious barriers in gaining employment. For example, the following notice appeared from November 1938 to May 1939 in the monthly newsletter of the Law Institute of Victoria: Position required for clerk in solicitor’s office, preferably city. Applicant has a degree of Vienna University (LLD). Three years’ practice at Viennese Court. Salary not so much object as experience.
57
B Rudolf Kahn and the Victorian Board of Examiners
The first Australian case of an émigré lawyer challenging his inadmissibility to legal practice—albeit unsuccessfully—was that of Kahn v Board of Examiners (Vic). 58 Rudolf Ernst Kahn was a German-born Jewish lawyer and university lecturer who arrived in Melbourne in December 1938, together with his wife, Johanna, and their five-year-old daughter, Mary Anne. Born on 15 October 1896 in Germersheim, Germany, Kahn studied law at the universities of Munich, Würzburg and Berlin, before being admitted to the Berlin Bar in 1923. 59
Kahn’s trajectory from Berlin to Melbourne was not linear but by no means exceptional among German Jewish émigrés seeking to escape Nazism. Following his admission to the Berlin Bar, Kahn moved to London to read law from 1925 onwards, eventually practising as a barrister at Gray’s Inn from June 1929 until January 1930. Although Kahn’s period of practice in London was brief, it later proved significant, as it meant he did not have to undertake additional legal studies in Australia. In January 1930, Kahn moved back to Berlin to assume the post of Honorary Legal Advisor at the British Embassy. In Berlin, Kahn also lectured at Berlin University and published a short study in English on comparative issues in international arbitration. 60 Kahn would remain in Berlin until October 1933, living through Hitler’s assumption of the German Chancellery in January 1933, and the introduction of Nazi laws in April 1933 barring Jews from positions in the German civil service and at universities. Kahn would later be formally disbarred on 20 November 1936. 61
Whilst Kahn was not an employee of the British Embassy, his services and expertise were valued, and the association proved valuable. Kahn included a translation of a personal reference from then British Ambassador to Berlin, Sir Horace Rumbold, in his Victorian admission to legal practice applications, first in 1939 and again in 1940. In this brief statement, Rumbold attested to Kahn’s services as a German solicitor having been ‘of especial value to the Embassy on account of his high legal qualifications including international law’ and that Kahn was at times requested to ‘furnish important legal opinions in German-English legal disputes’. 62 Rumbold is best remembered for his ‘strikingly lucid reporting on Hitler’s acquisition of power…and for his vehement protest against the persecution of Jews in his only meeting with Hitler’. 63 Rumbold’s personal reference for Kahn is dated April 1933, a couple of months after the burning of the Reichstag in February that year.
At the British Embassy, Kahn also worked for Australian-born Arthur Yencken. Yencken was an experienced British diplomat who would later be killed in a plane crash in Spain in 1944 en route to meet a shipload of war prisoners. 64 Kahn’s Victorian application for admission to practice also contained a short letter dated April 1931 from Yencken to Kahn, that conveys the gratitude of the British Secretary of State for Foreign Affairs for an ‘able and useful’ memorandum on currency fluctuation under German law that Kahn had written and that had been transmitted to the Foreign Office in London. 65 After leaving Berlin in October 1933, Kahn briefly returned to London, before again departing in March 1934 for Shanghai where he lived with his family for over four years. In Shanghai, Kahn practiced at the British Consular Courts in China and in the Shanghai local courts until July 1937. He also was appointed a professor of law at the Comparative Law School of China, Soochow University. At the time, approximately 18,000 central and eastern European Jews had sought refuge in the ‘open’ port city of Shanghai. 66 This refuge was short-lived, with the Japanese invasion in July 1937 and eventual occupation of the Shanghai International Settlement in 1941. In his Victorian admission to legal practice application, Kahn attributed his departure from Shanghai to ‘reason of the Japanese hostilities’. 67 After Shanghai, Kahn returned to London to practice law for a short period and made preparations to emigrate to Australia.
Prior to his arrival in Melbourne, Kahn was well familiar with the difficulties that he would encounter in gaining admission to practice in Victoria. In London, Kahn had arranged to meet then Australian Attorney-General Robert Menzies during his 1938 stay in London. Kahn’s objective in obtaining this meeting was to secure a ‘recommendation, introduction or advice’ that would assist him to re-establish himself in the legal profession in Melbourne. Although the meeting needed to be cancelled due to an ‘unexpected official engagement’ on Menzies’ part, Kahn’s subsequent letter to Menzies demonstrates that Kahn knew already then about his ineligibility for admission in Victoria on the basis of being a German national. 68 Nonetheless, Kahn used his correspondence with Menzies as an opportunity to frame his predicament in relation to the ‘fate of the many German “non-Arian” emigrants’.
After arriving in Melbourne in December 1938, the Kahn family established themselves in a house on St Kilda Road in inner city Melbourne, and Kahn started to work as a clerk at the Collins Street city law firm, Walter Kemp & Townsend. By April 1939, Kahn had also applied for naturalisation despite not yet meeting the residency requirements. Even though he was not yet naturalised and despite knowing that British subjecthood was a pre-requisite, Kahn nonetheless simultaneously pursued his application for admission to legal practice. At the time, the relevant legislation was the Legal Profession Practice Act 1928 (Vic). The Act authorised the Council of Legal Education to make and alter rules for admitting ‘persons duly admitted and entitled to practice’ as barristers or solicitors in the superior courts of England, Scotland, Ireland or other parts of the Commonwealth dominion ‘subject to any conditions…that seem expedient’. 69 As noted above, this allowed the Council to create rule 36 that required candidates for admission to legal practice to be natural-born or naturalised British subjects. 70 At the time, the Council’s membership included Supreme Court judges, Law Institute of Victoria representatives and notable personalities of the legal profession.
Within a week of receiving Kahn’s application, the Board of Examiners (the body authorised to review applications for legal admissions under the Council’s rules) refused to admit Kahn on the basis that he was not a British subject. Kahn appealed to the Victorian Supreme Court, arguing that rule 36 was ultra vires and that the Court had the authority to substitute its own decision concerning his admission. At the hearing, Wilbur Lincoln Ham, a formidable advocate and King’s Counsel, appeared on Kahn’s behalf.
71
On 2 May 1939, the Court unanimously upheld Kahn’s exclusion from legal practice. The Court found that the Victorian legislation conferred ‘ample’ powers on the Council to justify rule 36. The Court also refused to dispense with the Board of Examiners’ decision, with Mann CJ remarking: Indeed, the only ground put forward for the exercise of our discretion has been one based upon the present needs of the gentleman who makes the application and that, we feel, is quite insufficient to persuade us to take the course we are asked to take.
72
The High Court delivered its judgment on 21 July 1939 dismissing Kahn’s request for special leave, with the majority upholding rule 36 as intra vires. The High Court similarly found that the principal Act conferred power in ‘wide terms’ onto the Council of Legal Education, such that the Council had the ‘full power to prescribe a condition relating to nationality’. 74 The majority differed though on the question of whether an ‘alien’ could take an oath of allegiance. In his leading judgment, Rich J tied the pre-requisite of British subjecthood to the requirement that barristers and solicitors needed to make such an oath, holding that rule 36 was ‘clearly justified as a means of securing that the person seeking to be admitted to practice in Victoria should at least have that tie which is connoted by the word allegiance’. 75 Nonetheless, in obiter remarks, Rich J stated that he was ‘incline to the opinion that an alien within the realm may take’ an oath of allegiance even if this did not necessarily make the alien a subject of the King. 76 Latham CJ similarly reasoned that he was ‘not prepared to hold that an alien cannot take the oath of allegiance or that he cannot be a barrister and solicitor’. 77
In contrast, Starke J placed weight on the distinction between the ‘local and temporary’ allegiance owed by aliens to the sovereign whilst in the realm compared to the ‘indissoluble and permanent’ duties owed by British subjects to the sovereign. This distinction, for Starke J, meant that an alien could not take an oath of allegiance where an Act of Parliament required such an oath for holding a public office or entry into a ‘public profession’ such as law. Otherwise, Starke J remarked, ‘might the judges of the Supreme Court of Victoria all be aliens?’ 78
A lone dissenting judgment was delivered by Evatt J on the basis that the Supreme Court ought to have dispensed with the requirement of rule 36 given the applicant’s ‘special circumstances’. Specifically, Evatt J held that the Supreme Court had failed to pay ‘sufficient regard’ to the ‘weighty’ considerations of Kahn’s ‘personal needs’ including his qualifications and experience. It is worth quoting Evatt J’s judgment at length to demonstrate how he combines legal considerations with broader moral and political concerns: The court has no power to prevent an increase in the number of Victorian practitioners merely because it fears “overcrowding of the profession”. Despite his alienage, the Federal authorities have admitted the applicant to reside in the Commonwealth. He is not only a British practitioner, but has rendered valuable service as a legal adviser to the British embassy in Berlin. He cannot practice his profession in Germany because he is of the Jewish faith or race. So far, the Federal Government, while imposing severe restrictions upon entry, have refused to accentuate the consequences of the policy of persecuting Jews which unfortunately has been adopted by a great European nation. No doubt the Supreme Court, if it decided to allow British practitioners of alien nationality to practice in Victoria, would do so only under proper assurances as to character, learning and behaviour; but a general embargo might turn out to be dangerous even to Victorian interests, especially in cases like the present, where the claim is based upon a British qualification. England itself admits aliens to practise as barristers…. In the end a liberal and humane policy is likely to turn out to be wise as well as just.
79
Whilst Kahn’s appeal was unsuccessful in transforming the Victorian admission rules, it did attract some public attention at the time. An article in Melbourne’s The Herald noted that a ‘distinguished German refugee lawyer’ had not been allowed to join the Victorian Bar, 80 whilst the Sydney Sun newspaper reprinted much of Evatt J’s dissent verbatim under the heading ‘Judge outspoken on Jews’ plight’. 81 Notably, the Law Institute of Victoria’s regular publications made no mention of Kahn’s initial failed bid for legal admission, despite including a summary of interstate solicitor admission requests in the annual report. 82
Kahn would eventually be admitted to legal practice in Victoria less than a year later, on 1 April 1940. His earlier than anticipated admission was made possible by the Department of Interior expediting his naturalisation. Whilst Kahn was required to wait one year after his arrival in Australia to lodge his application, the Department’s Secretary agreed to treat his application as meriting ‘special consideration’ on the basis of Kahn’s past service to the British Crown, his ongoing offer to be of service to the Australian government and his desire to seek admission to legal practice. 83 As a result, Kahn was naturalised as a British subject on 14 March 1940, two weeks prior to his admission to legal practice. 84 Fittingly, Kahn’s admission was moved by Wilbur Ham, together with Reginald Sholl 85 and Maurice Ashkanasy (who had initially sponsored Kahn’s entry to Australia). 86 However, becoming a British subject did not remove all the barriers facing Kahn in legal practice. In 1944, Kahn wrote to the Secretary of the Department of Interior again to make the case that his naturalisation certificate be amended to state that his prior nationality was ‘stateless’, rather than German. He noted that this request was of ‘practical importance’ as it would ‘remove certain disqualifications (such as under the National Security (Land Transfer) Regulations) connected to my former German nationality’. 87
After admission, Kahn went on to establish his own legal practice in 1940. Kahn would later expand his practice into a partnership with Dr Hans Erich Clahr, with the new firm becoming known as Kahn & Clahr. Clahr was also a refugee from East Prussia and a former German judge who had completed his doctorate in law at the University of Königsberg. Together with his wife Gertrud, Clahr arrived in Melbourne in June 1939, was naturalised in November 1945, and finally admitted to the bar in March 1949 after having to repeat his legal studies in Australia (Clahr graduating from a Bachelor of Laws at the University of Melbourne in December 1947). 88 Despite being almost a decade after Kahn’s admission, Clahr’s admission was mentioned in Melbourne newspapers as a notable occurrence, with The Bulletin describing it as one of two ‘unusual’ admissions to the Victorian Bar (together with Irish émigré lawyer Michael Joseph de Riva O’Phelan). 89 Eventually, in 1961, the partnership of Kahn & Clahr would expand to include Latvian émigré Aleksandrs Gārša.
Part of Kahn’s early practice included reparation claims against the German state.
90
Both Kahn and Clahr would receive an honorary award from the German government, the Officer’s Cross of the Order of Merit, in January 1966 for their work in providing legal assistance to Australian Holocaust survivors. A letter from the German Embassy in Canberra to the Department of External Affairs, requesting permission to bestow the honour on Kahn, states: From 1953 onwards Dr. Kahn most selflessly and co-operatively assisted the German Consulate in Melbourne in settling numerous cases for compensation for those former German nationals who, now living in Australia, had suffered from political and racial persecution in Germany between 1933-1945.
91
C Edward Korten and the NSW Barristers’ Admission Board
In contrast to Victoria, at the time of Kahn’s High Court challenge NSW did not expressly prohibit the admission of aliens to legal practice, nor was there any formal requirement that a candidate for legal admission be a British subject. Instead, admission to legal practice in NSW was governed by a combination of the Supreme Court Rules and the specific Barristers’ or Solicitors’ Admission Rules passed by the Supreme Court. 94 The Supreme Court Rules, for example, stipulated that any person applying for admission must be a ‘fit and proper person’ whilst the Barristers’ Admission Rules specified educational qualifications. However, in 1941, the NSW Supreme Court in the Korten decision came to interpret the requirement that an applicant be a ‘fit and proper person’ to mean that ‘aliens’ were ineligible for admission, thus functioning in practice to exclude unnaturalised émigré lawyers.
Indeed, the Korten case concerned another Jewish refugee lawyer, Edward Korten, who was denied admission to practice by the NSW Barristers’ Admission Board in September 1941, approximately two years after Kahn’s failed High Court appeal. Born in Vienna in March 1888, Korten studied law at the University of Vienna, and went on became one of the leading barristers at the Viennese bar with his practice in commercial insurance spanning a 20-year period. 95 He was also a qualified English and French language interpreter, which allowed him to work for the British Consulate in Vienna and travel occasionally to London. 96 Korten was politically active too, including being involved in an organised boycott of German goods in Austria from 1933 onwards. 97 However, Korten’s life was abruptly interrupted by the German annexation of Austria in March 1938, prompting him to flee to Switzerland and from there arrange to emigrate to Australia. 98
Korten arrived in Sydney with his Romanian-born wife, Elvira, and their eight-year-old daughter Susanne in February 1939, two months after Kahn’s arrival in Melbourne. Yet, unlike Kahn’s ability to gain admission within a year and a half of his arrival, Korten faced additional hurdles. As a civil law-trained lawyer who had never been admitted to practice in any part of the British Empire, Korten was required to undertake further legal study in Sydney. As a result, Korten completed a series of law subjects at the University of Sydney, including in Roman law, constitutional law, contracts and mercantile law.
99
Here he befriended the Law Faculty’s clerk Margaret Hay, who would later write him a reference in support of his legal admission application. Hay vouched for Korten’s ‘brilliant’ professional credentials and his pro-British political sensibility. Describing their friendship, Hay wrote that: I have been several times to [Dr and Mrs Korten’s] home and they have constantly come to mine…I have had numerous opportunities of seeing how entirely they are at one with us and our cause.…As far as I could tell from their knowledge of English classics and the British way of life as well as from their spontaneous expression of feeling before the war as well as after, they are genuinely pro-British.
100
Having completed his additional study requirements, Korten applied to the Barristers’ Admission Board of the NSW Supreme Court on 13 November 1941 for a certificate declaring that he was eligible for admission. However, a week later, the Board refused to issue the certificate on the basis that Korten was ‘not a fit and proper person to be made a barrister by reason only of the fact of your being an enemy alien’. 103 Undeterred, Korten applied to the NSW Supreme Court to ask the Court to admit him despite the Board’s refusal. At the Supreme Court, Korten was represented by Harold Snelling, an established Sydney barrister who would go on to become the NSW Solicitor-General in 1953. 104 Snelling provided evidence to the Court, including an affidavit by an expert in German laws of nationality, that Korten ought to be regarded as stateless rather than a German national. Similarly, Korten’s affidavit emphasised his lack of allegiance to Germany, stating that he was ‘in common with many others of my faith who have emigrated to Australia totally opposed to Nazism…and will do all in my power to defeat it and to assist the British Empire to prevail in the present War’. 105 He further stressed that, if he was unable to practice law until he was naturalised, his financial resources would be ‘considerably if not wholly depleted’ and that it would take him ‘several years to earn sufficient monies to maintain myself and my family’.
Nonetheless, on 11 December 1941, the NSW Supreme Court upheld the decision of the Board on the grounds that non-British subjects did not have a right to be admitted to legal practice. Korten’s appeal was complicated by the fact that, at the time of his appeal—and presumably in response to his case—the Barristers’ Admission Board had just passed a new rule expressly prohibiting ‘aliens’ from admission to practice. However, the new rule was not yet in force and would only become effective at the start of 1942. The Court therefore needed to decide what weight to give to this pending rule at the time of the hearing. Halse Rogers J, for the majority, held that the passing of the rule signalled a lawful ‘measure of precaution to quiet doubts and make the position clear [that aliens were ineligible for admission] and [was] in line with that taken in other States’. 106 As a result, the disqualification of aliens to legal practice in other Australian states was ‘based on the [correct] view that only British subjects are fit and proper persons for admission’. 107
Korten appealed to the High Court principally on basis that he was not a German national, nor should the Supreme Court have held that he acquired German nationality as a result of Germany’s annexation of Austria. He argued that the Supreme Court ought to have found that he was a stateless person living within the British Commonwealth and was entitled to the King’s protection, not an enemy alien, and that he had no duty or allegiance to Austria or Germany. Moreover, Korten contended that the Board would not have withheld the certificate certifying his eligibility for admission to practice ‘but for its view as to [his] enemy character’. Alternatively, Korten argued that the Court erred in holding that only British subjects could be ‘fit and proper persons’ for admission to the Bar. 108
Korten’s High Court appeal was heard on 27 August 1942. Korten represented himself, as Snelling had by then suspended his practice to serve in the Australian imperial army. Richard Clive Teece and Bryan Fuller appeared for the NSW Bar Association, although Teece admitted that he was ‘not quite certain’ of their status given they were ‘not really respondents’ in the case. 109 Following a brief exchange, Latham CJ decided that they were appearing as amici curiae, given that the decision to refuse Korten’s admission was made by the NSW Supreme Court and not the NSW Bar Association. In response, Teece stated that the position of the Bar Association was ‘not to take opposition but to assist the Court’. 110
The transcript reveals that Korten’s arguments did gain a degree of sympathy from the Bench, even if the Court ultimately did not find in his favour:
This [Nazi] decree in clear words declares that a Jew who has made his ordinary residence abroad cannot be a German National and that Jews who have made their ordinary residence abroad at the time of the decree lose their German nationality.… 111
If that is the case it would show that you are not an enemy alien.
Yes.
Mr Teece, if this is the case, if there is a decree which decisively declares that Dr Korten is not a German national, it would remove the objection of the Board, would it not?
No.
I presume the Board would be prepared to consider a new application.
I do not appear for the Board and cannot speak for it.
Do you know any reason why the Board should not consider an application on new facts?
Yes because I am going to submit to the Court that no alien can be admitted to the Bar of New South Wales.
Including a Stateless Alien?
Any alien.… 112
Following further exchange, it became clear that the Bench was reluctant to depart from the Supreme Court decision. Instead, Latham CJ suggested that Korten’s best course of action would be to present new evidence to the Barristers’ Admission Board that conclusively showed that he was neither a German national nor an enemy alien. 113
The Court therefore agreed to indefinitely adjourn the appeal to allow Korten to do so whilst also preserving his rights as an appellant. Whilst this meant that there was no written judgment in the case, the court documents strongly indicate that the outcome would not have favoured Korten had he pressed for a judgment. For example, the court record shows that Rich J had already prepared a short written judgment dismissing the appeal on the basis that it was a ‘domestic’ matter of the state courts and the Barristers’ Admission Board had ‘untrammelled’ discretion under the Act to determine the criteria for admission and superior courts should not ‘fetter this discretion’ unless it is ‘clearly satisfied’ that there has been a ‘wrongful exercise of discretion’. 114
Following his unsuccessful High Court appeal, Korten reapplied for admission on 19 October 1942, only to have the Board refuse his application a second time on 28 October 1942. Interestingly, the minutes of the Board meeting indicate that it was not a unanimous decision, with Justice Harold Nicholas dissenting. 115 In the letter conveying the Board’s decision, the Board Secretary CJ Herbert stated that the ‘Board resolved that until you have acquired the status of a British subject it is not prepared to approve of you as a fit and proper person to be made a barrister’. 116 Although Nicholas’ reasons for disagreeing with the Board’s decision were not recorded in the Board’s minutes, archival records reveal that Korten and Nicholas had a close personal and professional relationship since Korten’s arrival in Sydney, with Nicholas assisting Korten with preparation for his Bar exams. Nicholas would later write a personal reference for Korten’s naturalisation efforts that stated that he believed Korten to be ‘a man of the highest character and thoroughly trustworthy’. 117
Following the Board’s second refusal, Korten initiated a political campaign to expedite his naturalisation. In December 1942, Korten wrote a lengthy letter to Attorney-General HV Evatt arguing that the Attorney-General had the power to issue him a letter of denizenship that would make an exception to the ‘hard rules’ stipulating minimum residency requirements in the Naturalisation Act 1920 (Cth). Referring the Attorney-General to his own judgment in Kahn that a person should have the ‘right to work’ if they have been lawfully admitted into a state,
118
Korten urged Evatt to consider ‘immigration of Nazi-victim’ to be ‘an extraordinary immigration’ that justified ‘sometimes extraordinary measures’: If under normal conditions the Statute provides for a period of FIVE YEARS to test an immigrant’s fitness to become a citizen, very much less will be required to test a person who left as early as possible the first of the countries conquered by Germany, and…declared his intention to become a good citizen, as he believed to have been in his country of birth.
119
With this option now closed to him, Korten focused his attention instead on ensuring that his application for naturalisation would be approved as soon as he met the five year residency requirements. From March 1943 to March 1944, Korten sent several letters to the Department of Interior putting forward his case, including organising the personal intervention of then Crown Solicitor Harry FE Whitlam, who, after meeting with Korten in Sydney in late 1943, wrote to the Secretary of the Department of Interior to note his ‘favourable’ impression of Korten and that Korten was a ‘person worthy of naturalization’.
126
By December 1943, the Department of Interior was treating Korten’s case as ‘urgent’, even if this was not communicated directly to Korten.
127
Frustrated by the delay in the naturalisation process, Korten again wrote to Evatt in February 1944 to request that his certificate be issued without further delay owing to ‘personal hardship’: I submit, that it involves grave hardship, if a man of mature age is waiting for his certificate of naturalization as a condition of his admission to his profession, from which he has been excluded for years by reason of his status only.
128
Archival records indicate that despite his qualifications, social networks and expertise, Korten struggled to establish his legal practice in Sydney. For example, in late 1947, Korten wrote to the Australian embassy in Washington, requesting that his name be placed on their list of Australian attorneys that may be given to anyone in the US requiring assistance from an Australian lawyer. 130 Unfortunately, despite repeated correspondence, Korten’s request did not succeed owing to a technicality. Whilst the Australian Department of External Affairs was happy for the Australian Embassy in Washington to compile a list of Australian solicitors for distribution, it was held to be ‘undesirable’ to record a list of barristers. 131 Korten’s frustration at this decision is palpable. In a letter to the Department’s Secretary, Korten wrote that he would not have made the request had he ‘not met an unexpected handicap in establishing a practice’ in Sydney. 132 Subsequently, Korten conveyed that he would ‘refrain from arguing his own case’ but that he ‘cannot share the view’ that his request was not possible. 133
Part of Korten’s practice included advocating for Jewish refugees who had been denied naturalisation in Australia in the mid-1940s. At the time, some Jewish refugees in Australia were denied naturalisation on the basis they intended to travel outside of Australia for a period of time after naturalisation. In a letter to the Department of Interior arguing that this practice was unfair, Dr Korten wrote: many of us…wish for a last time to enter our countries of origin as free men and members of a new civilised community, after having left those countries as despised slaves. Probably many of us do not only wish to attend the graves of our dead ones, and to meet our surviving friends and relatives, but also to see some of those who took a part in our expulsion, and to give them a piece of our mind.
134
Tragically, Korten’s work and life was cut short. He died on the footpath near Queen’s Square Courts on 16 September 1948. A short article in a Sydney paper, ‘Barrister Dies near Courts’, appeared the following day. 136 His untimely death put an abrupt end to his work assisting Holocaust survivors; however, it is clear that from his short time in practice in Sydney, he made a mark on both the legal profession and the government authorities to whom he advocated.
IV Australian Citizenship, Law Reform and Professional Transformation
The requirement of British subjecthood would remain as a condition for legal admission in all Australian states and territories for another two and a half decades, until as late as 1978. This was despite another unsuccessful court challenge in 1960 brought by Szalom Lejb Borensztejn, a Jew born in Poland in 1923, who migrated to Australia in 1939 and subsequently served in the Australian imperial army during WWII. 137 Borensztejn had studied law at Melbourne University, qualifying for admission to practice except for his status as an alien. After the Board of Examiners refused to grant him a Victorian practicing certificate, Borensztejn appealed to the Victorian Supreme Court. Representing Borensztejn before the Full Court was Ashkanasy, the same barrister who had two decades earlier supported Kahn’s entry into Australia and his eventual admission to legal practice. In court, Ashkanasy submitted that Borensztejn was a stateless alien who was capable to taking the oath of allegiance necessary for entry into legal practice. 138 Borensztejn’s appeal was unanimously rejected by the Full Court, with Lowe J unequivocally stating that ‘none of us entertains any doubt that the decision of the Board of Examiners was correct’. 139 Similarly, Sholl J (who had also supported Kahn’s admission) cited the Kahn decision as authority for the proposition that British nationality had long been regarded as a ‘relevant consideration’ for a candidate’s fitness for legal practice. 140 Borensztejn would eventually become naturalised in May 1965, half a decade after his initial admission attempt. 141
In 1975, the South Australian Ho decision signalled the first time that an Australian court was prepared to relax the prohibition on alien lawyers practising in Australia. 142 In the Ho case, the Court agreed to dispense with rule 5 of the Supreme Court Admission Rules 1955-75 (SA) that made British subjecthood a pre-requisite for entry into legal practice in South Australia. 143 The applicant’s circumstances were significantly unique. The applicant was a stateless person born in the State of Brunei in 1949, which was then a British Protectorate. The applicant submitted that he never took the steps necessary to acquire Brunei citizenship and continued to possess a British passport issued by the High Commissioner for the State of Brunei that recorded his status as a ‘British protected person, State of Brunei’. Whilst the Court held that the applicant could not be considered an alien under British or Australian law, the Court found that this did not necessarily make him a British subject (owing to the distinction between British subjects and British protected persons in the common law). 144 Nonetheless, the Court held that the applicant’s particular status being one that ‘so closely resembles that of a person having the status of a British subject’ meant that his application constituted special circumstances for dispensing with the usual pre-conditions. 145 Whilst the Ho decision reflected the applicant’s unique circumstances, it prompted the SA Supreme Court to remove the requirement of British subjecthood as pre-condition for admission to practice later that year, 146 making South Australia the first jurisdiction to admit ‘alien’ lawyers in Australia.
Other jurisdictions would quickly follow suit, but not without some further challenges and uncertainties. In 1976, the NSW Supreme Court followed the Ho reasoning and used its discretion to order to allow then 25-year-old Sydney University student Daniel McKean Howard to be admitted to legal practice, despite his American citizenship. 147 Under American law, acquiring Australian citizenship, or even swearing an oath of allegiance in the context of admission to legal practice in Australia, could mean that Howard forfeited his American nationality. 148 The Court took into consideration the personal disadvantage and ‘real prejudice’ to the applicant if he were to lose his American citizenship. 149 Both the Ho and Howard decisions created impetus and momentum for law reform. In March 1977, the NSW Supreme Court followed South Australia to amend the Barristers’ Admission Rules (NSW) to remove the requirement of British subjecthood and change the requirement of an oath of allegiance to an ‘oath of office’. 150 In 1978, Victoria was the last state to remove the requirement of British subjecthood for entry into the legal profession, and also amended the Legal Profession Practice Act 1958 (Vic) to empower the Supreme Court to excuse applicants from taking an oath of allegiance. 151
Further changes would occur in the following decade to the reception of foreign-trained émigré lawyers in Australian jurisdictions. For example, in 1985 Victoria removed all reference to the ‘superior courts of England…and Commonwealth dominions…’ from the legal admission rules, and instead inserted a new section that allowed the Council of Legal Education to make rules for the admission to legal practice of any person who had been admitted as a ‘legal practitioners (however styled) in any country outside the Commonwealth of Australia’. 152 This change opened the way for the Victorian admissions body to recognise practitioners from a range of foreign jurisdictions, rectifying an earlier gap in the Council’s authority. 153 By 1984, the LIV’s Annual Report stated that of the 606 lawyers admitted to legal practice in Victoria that year, a ‘considerable number of 395 were newly admitted Victorians, and the rest came from other jurisdictions—116 from other States and New Zealand, and 95 from Britain and Asian countries, mostly Hong Kong…Nearly all the Hong Kong admittees went home as soon as they were admitted’. 154 Thus, even in 1984, at the time that Australia was becoming a constitutionally-independent state within the British Commonwealth and had taken the final steps to remove any reference to Australian citizens as British subjects in Commonwealth legislation, the cultural diversity of the Australian legal profession was only starting to expand. By 1992, the Law Council of Australia would issue a Policy Statement that recommended that there should be no Australian citizenship or residency requirement for admission to legal practice in Australia. 155
V Conclusion
Recalling the largely overlooked history of Kahn and Korten’s initial exclusion from the Australian legal profession has important implications for Australian jurisprudence, legal scholarship and understandings of the legal profession today. As a matter of jurisprudence, the Kahn case continues to enjoy a juridical life, cited not only for the past ineligibility of aliens from legal practice, but also as current authority concerning Supreme Court procedure, 156 the changing nature of Australian citizenship, 157 and on the common law relationship between resident aliens and the Australian community. 158 For legal scholarship, it demonstrates how biography as a legal method—in particular when paying attention to seemingly marginal figures at the peripheries of legal practice—offers new insights into the historical constitution and changing cultural identity of the legal profession. Finally, whilst it shows how two European émigrés forged unique professional connections and advocacy strategies, their experiences cannot be taken to be representative of émigré lawyers in general or even lawyers from a minority cultural background within the Australian legal profession today. Evidence suggests that lawyers from cultural minorities may be disadvantaged by not enjoying the same connections or tutelage as lawyers with more cultural capital. 159 Combatting such ‘racial nepotism’, as Derrick Bell has termed it, 160 across the legal profession requires more than law reform. Nonetheless, the stories of Kahn and Korten allow us to appreciate a part of the long and difficulty legal history that informs this contemporary task.
