Bills

Statutes Amendment (Attorney-General's Portfolio) Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

Mr TEAGUE (Heysen) (16:00): Commencing my contribution to the second reading debate prior to the adjournment, I was just making some observations about the context in which this bill has come on for debate. As we have heard from the Deputy Premier taking carriage of the bill in this place, we are seeing a bill—the title has just been read moments ago—a portfolio bill, as it has been described: the Statutes Amendment (Attorney-General's Portfolio) Bill 2024, which is said to be amenable to doing a whole range of routine things that are within the portfolio of the Attorney-General.

The house is well familiar with such portfolio bills; indeed, this is styled as the Attorney-General's portfolio bill No. 5, at least when one consults the Notice Paper and makes one's way all the way over from the first page of Government Business, Orders of the Day, past the top 10 and through to the end of the second page, past the top 20. All the way at the bottom of the list of business that is before this place, one can see at No. 23, coming in as it were right at the tail end of that long list of government business that is presently before the house, this so-styled portfolio bill No. 5.

I say that the house is familiar with this form of legislating for a portfolio; indeed, as the name would indicate to us, we have seen several of them already in the course of the parliament. The purpose of portfolio bills is well known. It ought to cover a range of matters that are cropping up from time to time in a variety of legislation and ought also ordinarily to legislate for matters that are both convenient and uncontroversial, matters of dealing with the ordinary day-to-day necessities in terms of improvement, rectification of errors, updating of references to matters that are no longer undertaking any function and so on.

So it is that we find this No. 5 portfolio bill that is sitting there at the tail end of the list. Against that kind of characterisation that the government has willingly embraced, and then, it would appear, apart from having prioritised the progressing of debate on the bill, it has otherwise shown no real explanation as to why there is really any priority given to this bill that is otherwise sitting right at the end of the list.

We nonetheless are undertaking a debate that does indeed contain provisions of real consequence to that group of practitioners who are presently styled in terms of recognition of their seniority as 'Senior Counsel' in this state at one end, all the way through to the observation of its relevance to all South Australians.

In amongst the 51 clauses of the bill are a relatively large number of individual pieces of paper associated with the bill. It runs to 11 of them all together. We see two-thirds of the way through—and, as I said earlier, I might say that the entirety of the bill, other than the part that is really a matter of controversy and substance, deals with only one subject matter: the changing of a title of those judicial officers who are styled 'Master' in each of the District and Supreme courts.

I have indicated at the commencement that those aspects might be matters of interesting debate but they are not essentially controversial. Changes to the names, while perhaps not necessarily requiring being loaded up with any undue degree of profundity in terms of what the names connote, might usefully be termed as proposed by the bill in terms of 'Associate Judge' and 'Associate Justice', rather than as they have been for many decades as 'Master'. So we will see that 49 out of the 51 clauses of the bill will have the effect of making those various changes to the relevant legislation to change 'Master' in respect of the District Court to 'Associate Judge' and 'Master' in respect of the Supreme Court to 'Associate Justice'.

It is important to recognise the important work that the Masters, as I have always known them, do. This bill provides an opportunity to reflect on the way in which Masters dispose of interlocutory matters, pre-trial matters, in those jurisdictions. It is well that we do that. If we are amending titles along the way, then it affords that opportunity, so I will just take that chance in a moment.

But it is not lost on anyone that the real subject matter of consequence, and unfortunately subject matter of real controversy, has really almost been in terms of, if you happened to follow the second reading contribution of the Deputy Premier earlier today, being kind of brushed over as though it were so much more updating and modernising of titles. The amendments that are the subject of clauses 31 and 32 respectively are matters of very important consequence, raising, as they do, the changing of what has been long recognised as a most significant marker of seniority at the senior bar, not only in this state in this country but throughout the commonwealth, and particularly in terms of the broader inheritance of our Westminster system of government here in South Australia.

So to couch this change in terms of being of like character to the change that is proposed to be made in respect of the masters is really to do a great disservice to perhaps both the narrow constituency, those who are immediately affected and would have something to say about the role of the name of the office, and also to those who are actually interested in engaging in the substantive debate about the origins of the title and about where we want to be in terms of this state and those longstanding associations with the Crown.

Buried as it is at clauses 31 and 32 of a miscellaneous portfolio bill, one might ask, 'Well, is the government simply providing some kind of legislative fig leaf to provide something for those who would have a broader view about the merits of the constitutional arrangements of our state and the nation?' because there will be plenty of people who will engage in the matter on those terms. Yet it is not a debate that the government is coming through the front door and saying, 'This is how we see the future of the state. This is what the consequences are for longstanding civic officers and this is how we are going to go forward into the future.'

Indeed, I am sure the government received Crown law advice on the bill. I do not hear any proposal to move away from that term, Crown law being the source of legal advice available to the government, the Crown indeed being the name that is given to the chief public law officers of the state. There is no proposal to change the name of the Crown Solicitor's Office or the Crown itself or, indeed, any amount of those related and longstanding references to the origins of both our government and justice systems in this state. Indeed, you can go all the way through in terms of finding references to the Crown, to our colonial inheritance in terms of institutions, to historical events, to the way in which we conduct debates in terms of the ordinary course right here in this model of the Westminster parliament.

It is a matter of very real consequence if we were to embark on a course of piecemeal legislating that might throw out morsels of what, in certain quarters, might be regarded as antiquated terminology, references or matters that in certain quarters might not be fully understood or that might be characterised in a rather superficial way as being in some way out of date. I just indicate that at both a practical and a principled level nothing could be further from the truth; it warrants serious debate to go about making a change of this kind.

It is important to couch the debate in terms of relatively recent events, because there will be a whole lot of reflection on the many hundreds of years of history of the terms that recognise Senior Counsel—indeed, reference has been made in recent weeks to origins denoting that King's Counsel and Queen's Counsel are recognised as those senior practitioners who are serving the monarch and are otherwise unavailable for broader service—all the way through to recent years, where there has been consideration, albeit in a series of proposals subject to legislation in South Australia and in other places, where the concept of the importance and current meaning of the titles has been reflected on.

It has been interesting to see where states have gone away from the use of the titles that in more than one—indeed, in three of them, including here in South Australia—that has been cause for reflection and reform after departing from those titles, the names of which have stood the test of centuries. You know that a title of long standing still has present worth when not only is there resistance to change to depart from it, but you see that a case has been made in those several instances to reinstate that which was once departed from. We saw that here in South Australia after similar processes were followed in Queensland and Victoria.

I might also add that, as I understand it, in each of those cases the arrangements we have been left with in terms of what is legislated and what applies according to the relevant practitioners act are ones in which there is recognition of the importance of the title. There is also recognition that it evokes different views in terms of its connotation for different practitioners.

There have been arrangements made in terms of the legislation now in all those states, including South Australia, for a practitioner to make a choice to elect if they wish to be appointed and, having been appointed in the way that applies to all practitioners as senior counsel, then to make that election if they wish to be appointed relevantly as King's Counsel, following the passing of Her late Majesty—what was for many decades before that a senior bar that was populated by those senior practitioners styled as Queen's Counsel.

Of course, it is an irrelevance—and has been for perhaps a century or more—to consider antiquities of what work King's Counsel would be reserving themselves, too, in terms of being available to the monarch. If you want to talk about antiquities and irrelevancies, there is a good example, because I think anybody who was reflecting on their understanding of what Queen's Counsel connoted (and now King's counsel), there could be no doubt that that title is well recognised, well respected and carries with it an understanding that the person carrying the title is of outstanding ability, integrity and service to the system of justice in the relevant jurisdiction.

It is for that reason that, applying as it has for such a long period of time, there are so many highly regarded senior practitioners who are proudly associated with the title—the Treasurer's late father, among them. It is a title of uncontroversial significant recognition of capacity. So it does the topic no justice, and indeed it does the topic a disservice, both in the interests of the community and of the profession, that it finds its way buried two-thirds of the way into this so-called Attorney-General's portfolio bill. Just those two clauses have been therefore, and unfortunately, the subject of considerable controversy.

I will refer in a moment to the letter of the President of the Bar Association, Marie Shaw KC, dated 7 May 2024 to the members of this place—I understand to each member of this place—in the context of the debate. I will perhaps reflect in that regard on the letter of the President of the Law Society to the Attorney-General, dated 17 April, also addressing itself to the bill.

It is fair to say that, in summary, both of those two senior representative professional bodies of the profession in South Australia are disappointed, surprised, opposed and left at a loss as to just what exactly the government is up to here. Those representations go very plainly to the merits of the proposition, and I will go to them in just a moment. It is for that reason that I will just spend a bit of time making plain that it is all the more, therefore, concerning, surprising, disappointing that the government has chosen not to walk in the front door with this bill.

It has not come along and said, 'Hey, we believe, as a government, that we are going to advance the interests of this state by making this proposal that is the subject of clauses 31 and 32 of this bill, and by getting that done, by moving it all the way up from the tail end of the list at No. 23 on the Orders of the Day and shoehorning it in a day or two ahead of the budget'—and the strategic genius on the government side has dreamt up this idea—'and not only that, but we will put it in the context of the Attorney-General's portfolio bill, the fifth of them, and then we will give the house a kind of a blancmange of provisions that it is hidden somewhere within, and then we will pretend that it is a substantive bit of legislation of that character.' It bears some reflection on just what exactly the government is up to.

Having couched it in those terms—where it stands, why we are here—why have we not returned to such matters as the seemingly, until this last week, urgent matters of reform in relation to casino penalties? That is at No. 4. There are a significant number of changes in relation to the Evidence Act as far as Aboriginal traditional laws are concerned. Sentencing of serious child sex offenders, for example, is well ahead on the list.

Indeed, there are government agenda items in relation to the protection of state heritage places, the reforms in relation to transport, retirement villages, changes that I expect are of some importance to government in relation to the Return to Work Corporation of South Australia, not to mention the long list of other matters that constitute just the government bills that are languishing on the Notice Paper at items 2 through to 22, while the government brings this particular matter to the house, apparently as some matter of urgent priority. If that is the case, the government has not made the argument. I heard nothing from the Deputy Premier as to the reasons why we have this sort of state of affairs confronting the house, and in this particular week.

Just to make good that proposition in relation to the level of controversy associated with the proposal so far as clauses 31 and 32 are concerned, I refer to the letter of the President of the Bar Association dated 7 May 2024. This is a letter that was sent to me as the member for Heysen; I understand that it was sent also to other members. There is no intent that it be other than informative in terms of the public debate. The president refers to the introduction of the bill in another place.

I am conscious that it might have been remiss of me before the break—I do not know that I have indicated I am the lead speaker for the opposition.

The ACTING SPEAKER (Mr Brown): I just assumed.

Mr TEAGUE: I do indicate that. I also indicate that the opposition, while generally supportive of the balance of the bill, is opposed to those changes that are the subject of clauses 31 and 32, and so much might have emerged from my contribution so far.

I go back to the president's letter. The President of the Bar Association set out to make sure that I, as just one member of this house—as I say, I expect, in like terms, other members as well—am properly informed as to the views of the profession, constituted as it is by members of both the Bar Association and the Law Society; that is, the South Australian Bar Association and the Law Society of South Australia.

In that regard, the Bar Association has adverted to and provided to me a copy of a letter from the SA Bar Association to the Attorney-General dated 10 April 2024. I will come to that in a moment. It also has brought to my attention the letter of the President of the Law Society, Alex Lazarevich, to the Attorney dated 17 April 2024, with both the association and the society expressing their strident opposition to the changes that I have just described.

The President of the South Australian Bar Association then draws to attention—and she describes as a subject of regret—that there had been a number of public statements made that were apt to mislead and misinform consideration of the bill. The Bar Association's president asks that I note—so I do by way of quoting it—the following:

1. The profession in South Australia, as represented by its constituent bodies, is opposed to the amendments proposed by the Attorney-General in the Bill so as to abolish the Office of King's Counsel.

2. Historically, the postnominal Senior Counsel, was only introduced because of the Rann Governments interference in the process of appointment that had occurred at the time.

3. Under the current legislation, there is no possibility of Government interference in the process of appointment, nor is the role of the Justices of the Supreme Court in the appointment process in any way usurped.

4. It is fundamentally incorrect to say, as the Chief Justice did on 5AA radio this morning, that persons who exercise the choice to request that they be appointed King's Counsel, do so for the personal exploitation of an Office bestowed in the public interest. This view has not previously been conveyed to SABA by the Chief Justice and it is, with respect, regrettable and not accepted by SABA.

5. To the contrary, persons who have been appointed Senior Counsel who have requested that they be appointed King's Counsel, have done so having regard to client wishes, market dictates and intense competition with barristers' interstate, where two of the three largest bars, senior counsel are overwhelmingly King's Counsel.

6. I can assure you that those appointed Kings Counsel (many of whom including myself were appointed at a time when there was no office of Senior Counsel) and Senior Counsel take their role in the administration of Justice in South Australia and the Commonwealth, to be essential to its proper working.

7. Finally, and for the record, the Advertiser's reporting of rates paid to Senior Counsel and Kings Counsel in South Australia being $10,000 or $20,000 per day is grossly inaccurate. If anything, these sorts of fees are more a reflection of the rates charged in New South Wales where the senior bar is confined to Senior Counsel ('SC').

What emerges, therefore, in that rather succinct expression from the President of the South Australian Bar Association, if I might put it in terms of my own expression, is a form of indignation and disappointment, and in turn a rebuke, in terms of the work that the postnominal KC and the title King's Counsel in fact connotes and represents.

Indeed, as is well known, the President of the South Australian Bar Association, Marie Shaw KC, is a former District Court judge, she is a longstanding, highly recognised Senior Counsel who has dedicated her life's work to advocating in those matters of difficulty, complexity and other challenges, often on behalf of those in need who otherwise could not avail themselves, but for the willingness of King's Counsel to stand up on their behalf, of an expert advocate to speak up on their behalf so as to ensure that the system of justice in this state functions as it ought. I think it is particularly appropriate that those sentiments, expressed as they are in her capacity as President of the South Australian Bar Association, are expressed by Marie Shaw KC.

I recognise those summary points that are raised somewhat at the conclusion of what had been a flurry, if you would, of an expression of concern to prevent something that was avoidable and undesirable but couched in this way as though rendering it something that ought properly be dealt with as part of a bill dealing with relatively inconsequential and uncontroversial matters.

The contribution of the President of the Law Society not quite a month earlier, on 17 April this year, is going very much to driving home those same sentiments. Mr Lazarevich, I might say, is a practitioner who is particularly well placed in terms of exercising the duties of the President of the Law Society to make observations about this particular matter as a member of the independent bar himself. He is a bridge, if you like, between the independent bar and the bulk of the members of the Law Society of South Australia who are practising solicitors.

By his letter to the Attorney, President Lazarevich, among other observations as to the balance of the bill, addresses himself first to putting the bill into some context and then remarks about the merits or otherwise of the proposal to remove the appointment of King's Counsel in South Australia. He makes the observation that the bill is only really doing those two things that I have talked about already. It could very easily be confined to doing all the things that it is doing in terms of changing the name of the title of Master without embarking into this territory at all. This could be stood alone and be the subject of other matters and therefore be the subject of its own debate. There it is and it is not lost on the Law Society that it is couched in these terms.

The president advises on behalf of the society that the society does not support the proposal to revoke the ability to receive the postnominal King's Counsel in South Australia, a matter that was carefully considered as recently as 2018-19 and does not take a position on the proposal to replace the title of Master but raises some queries as to the terms in which it is proposed. There is the benefit of consultation. We see the Law Society doing as it almost invariably does when given the opportunity to weigh in thoughtfully on the subject matter that is the subject of bills, whether it be routine or in these unusual and regrettable circumstances.

So what does the President of the Law Society then go on to say on behalf of the society in relation to the proposal to remove the ability to apply for and receive the title of King's Counsel in South Australia? Mr Lazarevich observes:

6. The Society does not support the proposal to repeal and replace section 92 of the Legal Practitioners Act 1981 (SA)…to remove the ability of individuals appointed as Senior Counsel to apply for letters patent to become King’s Counsel.

7. By way of background, the Society notes that from 2008, the then title of Queen’s Counsel was revoked and these arrangements ran to 2020, when the QC postnominal was reinstated by the former Government.

8. In 2018 and 2019 the Society gave extensive consideration to the former Government’s proposal to reinstate the QC post-nominal.

9. The Society considered the arguments against the reinstatement. These included some views that the title was 'anachronistic', that there was no uniform position around Australia, and that the use of the title Senior Counsel had become established.

10. The arguments in favour of the reinstatement of post-nominals were also considered, namely:

10.1. The title of Queen’s Counsel was a nationally and internationally recognised designation of seniority and status. It was advantageous with respect to the broader community when retaining silk to be involved in major and complex litigation, arbitration and mediation.

10.2. There was confusion in the broader community regarding the difference between Senior Counsel and Special Counsel.

10.3. The uptake of the post-nominal QC from SC (where it had been made available) was indicative of the perception, even within the profession, of the status associated with the post-nominal QC in comparison to SC.

10.4. The proposal was strongly supported by the South Australian Bar Association.

11. The Society commissioned a survey of its membership on the topic. A significant majority (over two-thirds) of respondents to the survey indicated a preference that silk appointed as Senior Counsel be able to seek a grant of Letters Patent for the title of Queen’s Counsel.

12. The Society resolved to adopt that majority view, and on 5 February 2019 sent [a] letter to the former Attorney-General, the Honourable Vickie Chapman MP.

13. The Society does not see the need to revisit what was an otherwise recently settled issue that involved considerable debate.

14. The KC post-nominal is available in Queensland, Victoria and at Commonwealth level and, over the past 30 years, each of these jurisdictions had changed to SC before ultimately reverting to the original approach of allowing the KC post-nominal.

15. The Society understands the vast majority of the profession appointed SC since the 2020 change have chosen to obtain Letters Patent and become KC. The Society considers that this demonstrates the preference of the legal profession for individual appointed silk to have a choice in the matter and for this reason queries the impetus for the Government to intervene, particularly noting the views of the Society and South Australian Bar Association were voiced and settled so recently.

16. There is a further important commercial aspect to the ability to take up KC as a post-nominal in that it provides a clear distinction between those who might otherwise be designated as Senior Counsel, and those who work in the many firms that have a position named 'Special Counsel'. Retaining the KC post-nominal will assist in ensuring members of the public are aware of this important distinction.

17. The Society notes that the South Australian Bar Association opposes the proposed change.

18. The current approach, by which legal practitioners are appointed as SC by virtue of section 92 the Act and have the option to seek letters patent to use the KC title leaves the discretion with practitioners, strikes an appropriate balance and, in the Society’s view, should remain unchanged.

I have there referred at some length to what are, in my view, carefully thought through submissions that have been put to the government in relation to what is plainly the fact that the matter has been the subject of considerable thought and review by the society. Bear in mind that the society is overwhelmingly populated by solicitors and those solicitors who are instructing counsel, a subset of whom may be King's Counsel/Senior Counsel, the bulk of whom are styled as King's Counsel. They are overwhelmingly in support of the retention. The South Australian Bar Association, meanwhile, is emphatic in its view in that regard.

In those circumstances it is well to reflect also on the earlier representation in the course of the debate once the bill had come to the attention of the Bar Association and to the earlier letter of Marie Shaw KC, in her capacity as President of the SA Bar Association, to the Attorney-General. That representation expressed no particular view on the proposed change of the name of 'Master' to 'Associate Justice' and 'Associate Judge' respectively and that aspect of the bill, which I might say occupies about 10½ pages of the 11 pages of the bill, was dealt with in a matter of a sentence or two by the Bar Association without expressing a view. So that puts that part of the bill into its appropriate context.

As to the proposal to alter the arrangement in terms of the appointment of King's Counsel, there are really a number of very clear observations that are made that members of the house in consideration of the matter in the course of this debate might well reflect on, as follows, so I quote in relation to the appointment of King's Counsel:

4. SABA opposes the proposed amendments to the Legal Practitioners Act 1981 (Act) directed to repealing the statutory provisions that currently allow for the appointment of Senior Counsel as Kings Counsel. The purpose of the amendments, manifest in the text of the Bill, is to extinguish the existing arrangements and would preclude the exercise of the Crown's prerogative, at the request of, and election by, Senior Counsel for appointment as King's Counsel.

5. SABA notes:

5.1 there is no suggestion in your correspondence—

That is the Attorney's—

that this proposed amendment is made at the request of the Chief Justice and Chief Judge, following a resolution by the Judges of the Supreme Court and District Court. It is to be inferred that the impetus for this amendment is not sourced in a resolution of the Judges of the Supreme Court and District Court; and

5.2. there has been no request by either SABA, or the Law Society of SA, seeking the proposed amendments be promulgated.

6. It is regrettable that the Government proposes to promulgate this aspect of the Bill just 4 years after the Act was amended following extensive consultation and debate. It is appropriate to recount the relevant background to the existing legislative and executive arrangements.

7. At SABA's AGM on 1 August 2018, a motion was put that the Association support the reinstatement of the appointment of Queens Counsel in South Australia and requested the Government to effect the reinstatement. At that AGM, 98% of members were in favour of the Association resolving to seek that Queens Counsel be reinstated in South Australia adopting the model and processes in place in Victoria. In accordance with that motion, SABA's then president, Mark Hoffmann KC, wrote to the Hon Steven Marshall, the then Premier and Vickie Chapman, the then Deputy Premier and former Attorney-General, requesting the Government to effect that reinstatement in accordance with the model set out in the motion.

8. A survey was also conducted by the Law Society of South Australia of its members in relation to the reinstatement of Queens Counsel in South Australia. Members voted 70/30 in favour of the reinstatement.

I pause there–and I will not do that very often in the course of the summary of these matters—to indicate that is the survey to which the President of the Law Society was referring in his letter. I continue to quote:

9. SABA, together with the Law Society, subsequently conferred and ultimately agreed with a proposed protocol for the appointment of Senior Counsel in South Australia. That protocol was approved by the Councils of both the Law Society and SABA. The protocols were designed to provide for a rigorous and transparent process for the appointment of Senior Counsel in South Australia by a committee comprised of seven (7) persons, including three sitting and former retired Superior Court Justices. Subsequently, the Chief Justice advised both SABA and the Law Society that the Judges had resolved not to support the process contemplated by the protocol because of an in-principle opposition to executive involvement in the recognition of, and the conferral of titles on, leaders of the independent legal profession.

10. Following receipt of an opinion provided by the then Solicitor-General, Dr Chris Bleby SC, as to the validity of proposed regulations under the Act, the Legal Practitioners (Senior Counsel and Queen's Counsel) Amendment Act 2020 (Amendment Act) was enacted with the support of both houses of Parliament. The Amendment Act inserted, inter alia, ss 91 to 93 of the Act. These are the provisions which the Statutes Amendment (Attorney-General's Portfolio) Bill 2024, if enacted, will amend so as to extinguish the existing possibility of appointment as King's Counsel following appointment as Senior Counsel.

11. The proposed amendments are particularly concerning having regard to the significant effort that went into resolving the issue and enacting the legislative provisions that would permit any person appointed as Senior Counsel to have the choice of post nominals and at the same time removing any capacity for either executive appointment of Senior Counsel (the situation that existed up to 2009) or political interference in the exercise of choice by a person appointed as Senior Counsel by the Chief Justice with the support of the Justices of Supreme Court.

12. The choice of post nominals is an important matter because it permits an individual to consider their position and ensure that they are competitive on a national footing. There are many Republicans around the country who none the less recognise the advantages of KC rather than SC and accordingly, exercise their right and choice for that to happen. The Queensland and Victorian Bar Associations both have in place a procedure whereby a successful candidate has the same choice that is provided for under existing legislative arrangements in South Australia. It is also important to note that the NSW Bar Association's model is not the benchmark for the appointment of Senior Counsel. Apart from the fact that Victoria and Queensland have similar arrangements to South Australia, appointments in New South Wales are made by the Bar Association, not by the Court.

13. Further, it is accepted generally that the post nominals of SC or Senior Counsel are often confused with Special Counsel and used regularly in civil and commercial firms almost as a form of passing off. Moreover, many regard the post nominals of KC as having greater recognition than the post nominals of SC. As much is self-evident by the number of persons who have chosen to exercise their rights under the existing legislation. Since the enactment of Section 92 of the Act, a number of persons appointed silk have elected, as is their choice, to retain the post-nominals of SC and seek appointment as Kings Counsel. That is precisely as the Act was intended to operate and it has done so without demur or controversy. There has been no request by members of SABA for a change to existing arrangements.

14. Any change to the existing position in this State, so soon after the existing arrangements were put in place after considerable effort and goodwill, would be disadvantageous to future applicants.

15. There is no impetus for such a change from members of the profession. SABA opposes the proposed amendments to this aspect of the Proposed Bill and respectfully request they be removed from the Proposed Bill.

In the midst of all of that—and I might say it is pretty clear that by moving in the way that it has and, as I have said, maybe more than once in the course of this contribution—couching as it has the change to processes in relation to appointment as King's Counsel in the context of this portfolio bill that otherwise deals with the subject matter that could be disposed of in a very straightforward and uncontroversial way, the government, whether wittingly or unwittingly, has revealed its hand in terms of the way in which it is willing to treat the senior profession in the state, and the message that this sends is one of disrespect, but also one of a surprising degree of cowardice.

If there is to be a debate about the subject of clauses 31 and 32, then it is a very modest ask that it be afforded a level of seriousness in terms of the principles that the government might have been endeavouring to pursue. If it is really nothing more than, as I have described it in the popular discourse at the outset of the proposal, some sort of half-baked expression of ideology, then it really is doing the parliament and the people of South Australia a really quite significant disservice.

Without more, that is a view that South Australians would be entitled to form of this government's approach to the subject matter. In the course of all this, there has been some considerable reporting on the difference of view. I respect the various contributions that have been made by those senior members of the profession, particularly when considering the range of contributions made that senior practitioners have taken the postnominal KC.

As I have reflected briefly, it is interesting to just reflect for a moment on the nature of what it is to practise at the independent bar and to take a senior role in it. It is really a commitment to independence, to fearlessness in terms of advocacy and to excellence. Those are qualities that far more characterise the nature of the service of those who have taken the appointment over the decades and those who continue to, far from it being a venal matter or a self-serving matter whether financially or with respect to the nature of the clients that senior counsel are assisting along the way, so much so that the independent bar has long thought fairly carefully about who is able to be a member of the Bar Association. It has taken a fairly thoughtful course about what those constituent aspects are in terms of one's contribution to advocacy.

It is not only those members of the independent bar who have been staunch defenders of the title. There are many distinguished Senior Counsel among their ranks. Eminent Senior Counsel who have adopted the postnominal KC in recent times include the former Supreme Court justice Martin Hinton KC, who is the current Director of Public Prosecutions, and his senior colleagues—Jim Pearce KC, and Lucy Boord I know has styled SC. There is the very longstanding and highly regarded Parole Board Chair Frances Nelson KC, and many others, who have dedicated themselves to service that could only be described as service to the justice system and in the public interest more broadly. They are to be applauded in that well-deserved postnominal, recognising as it does that commitment to service. It should not be treated in the shabby way that it is by its having been shoehorned in at clauses 31 and 32 of this regrettable bill.

Considerable surprise and disappointment has been expressed about the way in which this bill has come to the parliament, unnecessarily, and displaying what would appear to be some sort of an expression of principle, but couched in ways that do not make clear what is really intended to be achieved by the prosecution of the debate at this time.

I think it is perhaps well to underscore the point because it has made its way into the public debate. I have not throughout the bulk of my time in the profession, in various different ways, and indeed the bulk of my own previous generation's time, really ever encountered a member of Senior Counsel, styled as QC for the reason of the long reign of Her late Majesty, to be other than dedicated to eminence in service to the justice system. I cannot speak so much for other jurisdictions, but I expect that these observations might equally apply elsewhere, and I have had no-one contradict the proposition, anyway. The taking of silk, the appointment of Senior Counsel, involves a recognition of a range of obligations to the justice system that are taken, in my experience, extraordinarily seriously by those who take that appointment and then practise in that capacity. It implies more rather than less public service in the interests of the justice system.

In fact, while the whole of the legal profession is bound by professional conduct rules, ethical rules and parallel duties to the law, to the court and to the clients that they serve, it is those members of the senior bar who carry the title of Queen's Counsel, now King's Counsel, who most thoroughly embody those professional values that the justice system relies upon in order to function effectively. So it is a source of real regret that a step is taken in this way, and in such a backhanded way as well, to deny that choice to be associated with that proud and substantial commitment to excellence in terms of service to the system of justice in our state.

The reporting that found its way into the public debate in recent months, in terms of a reflection on the use of the title, is a matter that I might let speak for itself. I do foreshadow that I will, in the course of the committee stage in due course, express my curiosity as to the state of communications between the bar, and more particularly members of Senior Counsel in this state, and the government, and more particularly the Premier, because I understand, because I followed the debate in the Legislative Council, that the Premier has been written to by members of the senior bar about this matter, raising, as I understand it, concerns in relation to the mode and the substance of these changes.

I will be interested to know whether or not the Premier provided that to the Attorney-General and what came of it, what contents were the subject of the letter and whether or not he responded in any substance as to what consideration was being given to the contents, and was the letter also sent to members of the court.

I understand that communications from the senior bar to the government, and indeed to the Premier, may well have a useful and, I hope, consequential contribution to the debate in terms of swaying the government from its present position. I do make the observation that it would be obviously inappropriate for such a contribution to be tabled in the parliament without consent, but I am interested to know what correspondence has flowed and what effect it has had on the government.

I just want to make it very clear: I do not have a copy of any such letter. I am aware from the Attorney-General's remarks in the course of the debate in another place about a letter of that nature. The Attorney, unlike his practice on other occasions where he has chosen to table in the other place correspondence to him, I do not understand that that letter—at least the letter to which he has adverted—was tabled, and therefore it is not otherwise in the public domain. But I will express some particular curiosity about where that has got to in the course of the committee.

As I said earlier in the contribution, it might be refreshing to just spend a short moment reflecting on the other 49 clauses of the bill. They are all of like character. I think to the extent that they might be characterised as 'modernising the terms', I do not particularly readily accept the proposition that the term 'Master' is somehow so dated or is otherwise burdened by inappropriate association at all. I think it is a perfectly useful term to describe the role, that is as distinct from trial judges in a non-docket system.

The Masters are a very well-respected and very important part of the way in which business is disposed of in the District Court and the Supreme Court. If the substitution of the names 'Associate Justice' and 'Associate Judge', respectively, serves to highlight the important work that they do, and to the extent that there is no other reason for opposing the change, then it perhaps rises about that high.

I just would note that from the point of view of the profession, as I think has been observed by members here as well, I remember fairly early on in my time at the bar, going back about 20 years or so, when Master Peter Norman was giving lectures and seminars to the profession. There was a series that was titled 'Practice with the Masters' and it really connoted that special area of expertise that the Masters focused in on. They became masters of interlocutory process. That has carried on.

There are long-serving Masters of the court who have made it their business over a long period of time to ensure that the interpretation of the interlocutory rules of the court are made in a consistent way, that the interlocutory processes of the court are as efficient and productive as they can be, and that the processes of the court otherwise are well managed.

It might be well to reflect on the relative merits of a system in which, as distinct from the Federal Court where a docket judge will be assigned and hear all stages of proceeding from first directions all the way through to orders as to discovery and so on, it might be seen that there would be advantages to having one set of eyes on the matter all the way through to the conclusion of a trial. Certainly the docket judge has the advantage of understanding what the real issues in dispute between the parties are at a very early stage. It is a method of practice that I think works well in the Federal Court.

The approach that applies in the state courts and the state superior courts, the District Court and the Supreme Court, where two masters in each of those jurisdictions are responsible for all the interlocutory stages, has a different set of advantages in that there is a means by which the various matters that are necessary to attend to prior to trial are usually dealt with by a master and the first that the trial judge sees of the matter is when the parties are ready for trial. In a way, there is an advantage of having a fresh set of eyes. The trial judge then sees to the matter once all the preliminaries have been cleared away.

So there are two parallel systems. Both of them have advantages, and this is not the occasion for determining which of them has the greater merits. It is the sort of thing that the parliament could actually usefully wrestle with. It would be a matter of substance, as opposed to dealing with what has been described, as I say, by the government as a portfolio bill that makes some name changes for the vast bulk of its content, and then, as I said, disappointingly, gratuitously, unnecessarily goes about—I do not think it puts it too high to say—rubbing the senior bar's nose in this matter of significant substance.

Any sort of set of circumstances where one sees the legal profession in this state moved to be expressing such significant disquiet as has been expressed in recent months, is just a source of real regret, in my view. We often talk about how our institutions are fragile—it is true. We should not take for granted that somehow the democratic institutions that we inherit are just going to somehow sustain themselves regardless of the degree to which those institutions are subjected to this kind of treatment and that the practitioners, those who have committed themselves to service in those institutions, are put to this kind of rebuke that we find the subject of clauses 31 and 32 of the bill. To say that is not for a moment to do other than respect those who have a different view about the use of those postnominals and about the appointment as King's Counsel. It is the beauty of the current arrangements.

For those who are not aware, it is only a few short years ago but it is not a process that South Australia is alone on. In fact, it might better be described as the norm in terms of modern practice that you can have a process of appointment of Senior Counsel that is not connected at all with executive government and you can preserve the capacity for Senior Counsel to choose should they wish to seek appointment as King's Counsel or not. As a result, those who have a particularly strong view about the association of the postnominals, what it means in terms of our place in history, those who might have a view about its place in terms of the context of broader debates, could express an individual view about that.

There is a real attraction to that structure because we all know that individuals vary in terms of their view of what meaning might be connoted by various things. We have addressed in the course of this debate, and in previous debates, the various reasons for the ongoing relevance of the title.

To come in in the way that this government has done and, what I have described by reference to the recent correspondence, against the view of 98 per cent of the South Australian Bar Association members and the view expressed by a full 70 per cent of members of the Law Society, predominantly populated by the state's solicitors, in favour of the retention of the very structure that we have at the moment, and without more in terms of any pressing argument, really is an extraordinary step for this government to take.

I hope those members of the senior bar who have been personally affronted by the approach the government has taken on this matter have put their view loud and clear to the Premier. I hope that that view is the subject of very serious consideration by the government. Even in the course of this debate, it is not too late, and it would be a very straightforward thing, indeed, for the government to reconsider and to say, 'Okay. What we will do at the very least is carve these clauses out of this bill.' It is after all, as the Deputy Premier has described in remarks earlier today, not intended to be a bill of any particular consequence but rather a bill that is sort of suited to addressing these various kinds of run-of-the-mill workaday updates and so on.

If that is the case, really, it would be a sign of good faith—and I think it would be accepted on this side as a demonstration of good faith—if the government were to have that change of heart in terms of the approach to say that they have put it out there and couched it in this unusual way, deep within a bill where one might be forgiven for thinking, 'Hang on, it's sort of hidden in there in a bill that is really only addressing one other subject matter.'

Leave aside any puzzlement that has inspired and say, 'Alright, what we will do is go back and take away clauses 31 and 32.' Helpfully for the record as well: 'We have portfolio bill No. 5 dealing with the changing of the names of the Masters to Associate Justices and Associate Judges, and we will leave the debate of that matter of particular substance, the subject of clauses 31 and 32, for another day.' That may be a matter that is taken up further in committee as well. For the time being, I will seek leave to continue my remarks.

Leave granted; debate adjourned.