Statutes Amendment (Attorney-General's Portfolio) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 4 June 2024.)

Mr TEAGUE (Heysen) (17:56): I rise to continue my remarks. I think, around the time that I sought leave on the occasion of the adjournment of debate on the last occasion, the granting of which I am grateful for, I was continuing to reflect on the fact that we have before us in this sort of styled portfolio bill two clauses among 51 that are really meriting consideration in their own right, as distinct from the balance of the 51 clauses of the bill, which are providing for a change of nomenclature for certain judicial officers.

I emphasise, as I have done maybe in a number of different ways in the course of my contribution, that for those of us who have worked in the courts and appeared before the Masters and engaged in that interlocutory process in the way that matters are managed in the state courts, it is important to underscore that those particular judicial officers are in fact well described as Masters in that they are Masters of that particular set of activities within the court. To name them now, as the balance of this bill will, as Associate Justices and Associate Judges, is perfectly apt.

As I have said earlier in my remarks, Masters of the Supreme Court are already judges of the District Court. It is well known in the profession that those functions are important functions as part of the process of managing matters to trial. That is just to underscore that those parts of the bill, the vast bulk of it, with the exception of these two clauses, could have come along really at any time, or not at all.

The proposal has inspired nothing greater than the expression of no opinion one way or the other from the Bar Association and from the Law Society and from just everybody else, as far as I am aware. Yet couched in amongst that particular change, the source of which and the initiative for it remain somewhat of a mystery, we have then within them these clauses of particular consequence, of particular substance, albeit I recognise the day-to-day aspect of it may be regarded as quite discrete within the operations of the justice system. I seek leave to continue my remarks.

The ACTING SPEAKER (Mr Brown): You do not need leave to go to the dinner break, member for Heysen, so you may keep speaking if you would like.

Mr TEAGUE: What I expect to be doing over the course of the debate will be, having drawn the distinction, I will do some justice to the balance of the bill in terms of those 49 clauses—uncontroversial and perhaps suited to a portfolio bill—on the one hand and then bell the cat on the substance associated with those two clauses.

Sitting suspended from 18:00 to 19:30.

Mr TEAGUE: I am glad to continue my remarks. As I do, I note that, and somewhat unusually in the course of this Fifty-Fifth Parliament, we find ourselves here continuing debate after the house has taken a break for dinner and we are continuing, it would appear, solely for the purpose of the continuation of the debate on what the government has described as a portfolio bill containing the sorts of provisions that one might expect to be addressed as a matter of the ordinary day-to-day business of the parliament.

But we know that that is actually not the true nature of the bill, when it comes to those two clauses among 51 that are really a matter of genuine controversary in the state. So in combination, we find ourselves here under really what is a misnomer, a bill under the cover of a misnomer, and the government has decided that it is somehow desirable and necessary to press on with this misnomer bill after the dinner break and for no other reason.

I can understand a whole range of circumstances in which the parliament might be required to sit late into the night and to wrestle with the matters that confront the parliament in the course of dealing with the business before it. But, notably, and this extends to before your time in the chair, because, Mr Speaker, you will have observed that for the bulk of the Fifty-Fifth Parliament it has been the government's preference to get to within 10 seconds or 20 seconds or so of the time limit stipulated in the standing orders, after which there is no adjournment debate required at 5.30pm and at that point to up stumps and finish another day's business.

That is all very well. That is the government's prerogative. The government, by definition, controls the disposition of business, the order of it and so on, in this place. But it is significant in the course of this Fifty-Fifth Parliament, in contrast with parliaments in the past where it might have been a matter of routine when you go to the Notice Paper in parliaments of the past, that you see on the front page of the Notice Paper the government business list, and you see that running to more than a page. Indeed, just take the Notice Paper from today, a Notice Paper running government business and bills, and running to a full 23 bills waiting on the government agenda.

The Notice Paper is not unique today. It has not just suddenly burgeoned out from a handful of bills for debate out to the 23 that we see. Notwithstanding that, the government's preferred course of action over the course of really the vast bulk of sitting days in the course of this Fifty-Fifth Parliament has been to pull up stumps at half past five and to say, 'Oh well, enough for today.' But not today, no, we sat beyond half past five and we debated the Work Health and Safety (Review Recommendations) Amendment Bill and there is no doubt about it—I am not going to reflect on debates and proceedings in the house—we disposed of that business.

The point that is important to make about the bill that we are presently debating is that it is the sole reason for us to be here in this place after the dinner break and it really tells us a great deal about where the government is at in terms of its agenda for this parliament.

The SPEAKER: Member for Heysen, could you come to the substance of the bill, because so far you have talked a lot about us being here and sitting late and it has been six or seven minutes of just that. If we could return to the substance, that would be great.

Mr TEAGUE: I will do exactly that and I thank you for your direction in that regard. It is important to note that that is the fact, that is the circumstance: we are here solely for that reason. I think I have flagged a way forward that could dispose of the bulk of this bill more or less instantaneously. It could dispose of 49 out of the 51 clauses more or less instantaneously.

In fact, before we adjourned, as the standing orders require us to do for the dinner break, I invited the government to do precisely that—that is, to carve out clauses 31 and 32, get on with the passage of what would properly be termed a portfolio bill—and had I received an undertaking of that nature over the dinner break then that would have been welcome news indeed.

Instead, we are pressed here in circumstances where the controversy has been identified and we are required, now into the evening and into the night, to engage in what is a transition away from, and at the government's behest, the continuation of an institution in terms of the justice system of South Australia that harks in its origins back many hundreds of years, is associated with the very foundations of the justice system as we know it and which has come to this parliament, as I have said now on more than one occasion, under cover of this kind of innocuous, as it is characterised, portfolio bill styled as the Statutes Amendment (Attorney-General's Portfolio) Bill 2024.

Described as it is as the Attorney-General's bill, what is it that the Attorney-General has stated as the grounds upon which to proceed with those two clauses of controversy, because that is what is holding us all up?

The spotlight might be shone on the Attorney-General in this regard because, but for clauses 31 and 32, we could all be off doing other things in other places.

The member for Kaurna will recall that it was only a few short years ago—and the member for Kaurna participated in the debate in this place, as did I—that the house debated a bill and passed a bill that addressed the subject matter of substance that is contained within clauses 31 and 32. As the member for Kaurna and others will recall, it was a process that followed a very substantive up-front through-the-front-door process to regularising the process of appointment of Senior Counsel in this state, instituted the system as it stood then for the subsequent not quite half a dozen years, and it was a debate that was the subject of quite considerable consultation and reflection by the profession and the court and, indeed, the parliament all the way along.

In contrast to that debate, according to a bill that was styled as such and came in through the front door and said, 'This is what we are doing,' off the back of a 98 per cent endorsement of members of the Bar Association of South Australia and an overwhelming majority of the legal practitioners in the state, members of the Law Society of South Australia, we moved to regularise appointments. So that was only a few short years ago.

We see in stark contrast to that, the Attorney-General has decided—and I say 'the Attorney-General has decided', because this is a bill that has come to us having been introduced by the Attorney in another place. It has passed through the other place and it has come here, and we have heard an explanation of the government's view of it from the Deputy Premier representing the Attorney in this place and styling it as I have indicated in terms of subject matters suitable for inclusion in a general portfolio bill.

I take particular exception to the inclusion of clauses 31 of 32 in a bill of this nature, and I hope I have made that particularly clear, but what is it that is motivating the Attorney? The Attorney has stated what might be distilled as two grounds for moving in this way. I confine these observations to those two clauses of substance. The first is that the Attorney indicates, it would appear, that the use of apparently royal titles, such as King's Counsel, are a historical anachronism. That is the first.

Secondly, it would appear that the Attorney would have the parliament adopt that there is an indication that this would somehow bring South Australia into line with New South Wales where there are and have been since 1993 only Senior Counsel appointments. So, perhaps I will deal with the second point first, because there has been much that has been said in the course of this debate about the way in which different jurisdictions in Australia have charted a course over the years, indeed over the recent decades.

It has been inevitably wrapped up in different ways in different states with either the precursor or the advent or the response to the broader republican debate, and we do not want to get away from that too far, and I have alluded to it in my earlier remarks. I will come back to it, because it is a debate that I have seen, I have participated in it, and in many ways it would be refreshing if we were dealing with this subject matter not in an Attorney-General's portfolio bill, some sort of innocuous back-door approach, but rather via a writ-large statement of principle about where we want to head as a state in South Australia.

Alright, if that is the case, let us have the debate, but the Attorney has disowned that and the government has disowned it and said, 'Oh well, you know, it might be interpreted that way, but we are disowning that'. I have described it as a sort of form of fig leaf for that reason. If it is connected to matters associated with the republican debate in this country, then let us hear about that, front and centre.

For the time being we have heard an overt reference from the Attorney to comparisons with New South Wales. We know that the change that occurred in New South Wales in 1993 happened some several years before what was the most thoroughgoing republican debate, and it occurred under the premiership of John Fahey in New South Wales, who was active in that republican debate, so far through the front door.

The New South Wales context, as these things are when one actually takes a closer look, was characterised by a whole range of different criteria, contributing to both the nature of the debate and where New South Wales was left as a result of it that render the situation in New South Wales both before and after the debate really significantly different to where we are here in South Australia.

Can I emphasise that, to the extent the Attorney-General wants to draw some comfort from comparison with New South Wales, you want to be really careful where you head in that direction, because New South Wales charted a course, as it did a little over 30 years ago, that left it in circumstances that are really very different to South Australia now and very different to how South Australia would be, should those particular clauses be passed through the house at some stage in this state, whether now or in days, weeks or years to come.

I just say this, because it is critical to understand that the system in New South Wales for the appointment of Senior Counsel remains fundamentally different to that in South Australia. In New South Wales, appointments of Senior Counsel are made in accordance with a detailed procedure of the New South Wales Bar Association, as distinct from South Australia. The Supreme Court of New South Wales and its justices are not the appointers of Senior Counsel in that state. Accordingly, it is simply false to suggest that the change subject to this bill is somehow to bring South Australia in line with New South Wales.

Each jurisdiction is different as to its particular rules, it is different as to the history that it brings to a debate, it is different in terms of the motivation for proceeding to confront these issues of historical inheritance and it is different in terms of charting a course to the future. It should not come as a surprise to anyone in the house, and it certainly will not come as a surprise to South Australians, that we want to focus very clearly on how we are going about charting a course in this state. It is not a particularly impressive starting point to chart this particular course in the midst of this portfolio bill, so called.

The first contention of the Attorney in relation to the so-called anachronism of the title is not a lot short of risible. If you are going to hang your hat on this notion of anachronism when it comes to the Crown and you are not going to go the full bore and actually confront the issue in terms of having a full-blown republican debate—you know: where we are at in South Australia, where we are at in Australia—I am up for it. If you are going to do anything short of that, all you are doing is a sort of gutless approach to engaging in what is really a very substantial matter.

If you are not going to start calling Crown law something resembling what the Attorney's image of civic society ought to be characterised by, if you are not going to start calling the Royal Adelaide Hospital something that might celebrate some of our high-performing locals who we might want to recognise—we have had a health debate going on here in this place. We have been preoccupied by it because we have had a government that has gone and misled the state of South Australia in its election campaign, promising to fix ramping and then failing comprehensively to do so. So we have been preoccupied with talking about institutions that we are so proud of in this state, including the Royal Adelaide Hospital, The Queen Elizabeth Hospital and so many others that are associated with the institutions that we have—

The SPEAKER: I think we have had 20 minutes since the break and we have not really got to the substance. I know you are gagging for the republican debate, but that is not what this is. So if I could just bring you back to the substance. Thank you.

Mr TEAGUE: I thank you, Speaker. I think I have flagged where the substantial debate might be undertaken. It is certainly not in the context of this bill. It is certainly not in the context of a portfolio bill that is going to, in 49 of its 51 clauses, change the name of certain judicial officers in an uncontroversial way. Let's just deal with those 49 clauses. Those are uncontroversial matters.

I have said before, in the course of my contribution, that that may well—in fact, significant enough is the role of those Masters that that itself warrants a bill indicating what the proposal is in terms of those Masters. Change the names if you will. Recognise that the function of the Masters in the District and Supreme courts, respectively, is a vital one indeed, and let's focus on that. It is galling, it is gutless, as I have said, and it is avoiding the real debate to bury these two clauses of significant historical importance in the body of this so-called portfolio bill.

The Attorney-General draws attention to the comparison with New South Wales and what went on there in terms of its change in departing from nomenclature and the continuation of that longstanding institution from and since 1992. In the context of that comparison, relied upon by the Attorney, I would just refer to some parts of the reflection on the transition that occurred in New South Wales that Ruth McColl traced in a contribution to the Bar News in New South Wales, in edition 9 of 1993.

I just draw particular attention—this is found at page 11 of Bar News from that edition—to the fact that at the ceremony that occurred on the appointment of Senior Counsel in New South Wales on 10 December 1992, which was a moment, if you can picture this, in the Banco Court in New South Wales, they are all aware of the fact that this is the last time that we are going to see appointment in this way in New South Wales. It is a matter, therefore, of particular significance.

The then President of the Court of Appeal, Mr Justice Kirby, who went on, of course, to serve as a distinguished member of the High Court subsequently, was unable to be present during the ceremony that occurred in December of 1992. Those new Queen's Counsel then, some days later, presented themselves to the Court of Appeal, presided over by the president, and he sat on that occasion with Mr Justice Sheller and Mr Justice Cripps and the president made a contribution that he might otherwise had reflected on had he been able to be present on the 10^th.

It is of particular relevance to the debate that we are now presently having in this place, now more than 30 years on. Firstly, President Justice Kirby observes that he had been unable to attend. He had missed the ceremony at the Banco Court on the previous Thursday and reflected on what were then pressing commitments. It obviously impressed upon those present that the president would have regarded it as a matter of significant priority to be present, but he was unable to be.

It was not lost on the president that this was an occasion of significance because it was the last that there was to be such appointments, as will be apparent for those who no doubt get out the Bar News edition to which I have referred. They can read the contribution of not only the president but the Chief Justice as well that is caught in the course of this piece.

There was some reflection both on the role of the executive in the appointment of Senior Counsel in that state, and, in terms of what was then perceived to be the relevant understanding of the meaning of that role in other jurisdictions and particularly in Asia, which was the point of particular reference in the course of that debate in New South Wales.

The president, in broadly lamenting the change generally, makes the observation—and I quote at this point:

There is…no doubt that there would always remain in the legal profession a position of senior advocate—

and here is a concession—

In many of the countries of the Commonwealth which are now republics—

keep that in mind; they have first taken the step, they have first actually embarked on and had that debate and progressed in that direction, so bear in mind that proviso—

there are appointments of senior counsel, so styled (SC)—

in some of those example jurisdictions, Sri Lanka among them. It continues:

In Sri Lanka, counsel appointed to the Inner Bar appointed as President's Counsel (PC). In Nigeria, senior counsel are appointed as Senior Advocates of Nigeria (SAN).

And so, as the president observes:

There is therefore little doubt that, in time, some such ranking would emerge from the profession in this State if the rank of Queen's Counsel were abolished.

We will pause there, because there will be occasion to reflect on the fact that, while that might have been predicted, the contrary turned out to be the fact, at least in terms of those jurisdictions within Australia, outside of South Australia that is, that embarked upon that change around that time and subsequently, because that is not what occurred at all, bearing in mind those jurisdictions that had become republics really had no option but to establish these new roles.

It is interesting that at that time there is a kind of an expectation by the president that the new title might acquire the same sort of rank, and it might emerge over time, but the contrary has happened because we have seen what has happened in Queensland. We have seen what has happened in Victoria. Indeed, we have seen what has happened right here in South Australia where we have had a very thorough ongoing debate, thoughtfully, about those who have committed their lives to the health of the system of justice, and the conclusion has been, 'No, it is important that those ties to those values within the institution of Queen's Counsel, and now King's Counsel, abide and remain and, in many ways, may be further emphasised by the passage of time.' So what does the president go on to say? I quote:

What, then, will we have achieved by the abolition of the appointment of Queen's Counsel? We will have removed the Queen's name from the warrant by which the leaders of the Bar are appointed. And we will have removed the role of the Executive Government…

I will pause there because here in South Australia, and this is one of the points that is made about why the New South Wales comparison is just not apposite at all, we have taken away the connection with the executive altogether, and for reasons that are well known, and they can be addressed on another occasion. We do not have that comparison. What is important for the purposes of this debate is the president's observations about the removal of the title in New South Wales in all those circumstances at the end of 1992, insofar as that particular rank is concerned, because he says, and I quote:

So far as the removal of the Queen is concerned, it seems to me that, whilst we remain a constitutional monarchy, that ought not to happen. Behind the rank of Queen's Counsel lie four centuries of service of distinguished leaders of our profession. Such a ranking should not be set aside, at least without careful consultation with the judges, the profession, and the community. Certainly, in my respectful opinion, it should not be a decision made by an unexpected announcement on an afternoon when, as I understand it, the Attorney-General of the State was outside the State and on the very day that a consultation paper, including a question on the very issue, was distributed to the judges and to others.

So not entirely analogous circumstances. I do not know exactly what was going on in New South Wales in terms of the announcement of that particular change, but we see a clear expression from a judge who is undoubtedly one of the highest intellect, who is known throughout Australia as being committed to law reform, committed to the health of the system of justice, not only in New South Wales but of course all the way through to having served with distinction on the High Court, making that observation. At the very least, one can see in those observations a note of caution in terms of the way that one ought to embark upon and undertake the debate, if that is to be had.

President Kirby did not just come down in the last shower and share some thoughts off the cuff. He is there indicating that this is a matter of substance. It is a matter that is wrapped up with matters of real interest to all South Australians, if one extrapolates that to the debate that we have here in South Australia. It is not subject matter that ought to be cast around, akin to some sort of bauble that can be wrapped up in a couple of clauses within, and under cover of, a portfolio bill, so-called, in which a whole lot of clauses are devoted to the way in which the name of those Masters of the court might be described into the future.

It is simply an inappropriate way to proceed in the debate, but there is no realistic analogy, as I have indicated, to the New South Wales process, because coming as it did some years ahead of the republican convention and the referendum question that followed, led as it was by then Premier of New South Wales, John Fahey, it was a debate that was couched in terms of a combination of things, advancing a competition policy among them. The question of the role of the executive in the appointment process loomed large in the New South Wales debate and then you have along with it this question about some sort of precursor to what it might indicate in terms of a republic debate.

There is a whole range of different causes motivating first of all the New South Wales debate in 1993, and then what we have seen pan out in New South Wales has been a process of appointment and a set of arrangements in terms of the role that remains really fundamentally different to what we have in South Australia. Meanwhile, of course, and partly as a result of controversies of our own, unique to ourselves, South Australia has charted a course, now many years ago, separating the executive altogether from the appointment process. So you have a situation in South Australia where the appointment process is very much more discrete to the court, very much more within the purview of the Chief Justice and really very distinct from the process that was embarked upon in New South Wales.

But what can be said for the process in New South Wales, at least, is that you had a government that was walking in through the front door, and it was charting, for a whole lot of stated reasons, a course of reform that it was characterising as desirable in particular application to New South Wales. We have no such thing here in South Australia. We have, by contrast, this rather pitiful situation of a couple of clauses hiding somewhere within a portfolio bill.

Thirty years on—or, indeed, before we get to 30 years on, about 20 years on there is a helpful reflection on where New South Wales got to as a result of those changes. Daniel Klineberg made a contribution to Bar News in a piece in the autumn edition of 2014 in which he looked back upon then 20 years since the change. At that time, August 2014—so just a tick over 20 years following those observations of President Kirby, as he then was—there is some cause to reflect on what actually has transpired. The author makes the following observation:

What may be noted, however, returning to the comments from Kirby P referred to above—

I will get to those in a minute—

is that his Honour was of the view that whilst Australia remained a constitutional monarchy the monarch should not be removed from the appointment process of silks—

that is, Senior Counsel—

Nevertheless, the change envisaged in December 1992 occurred and, since then, there have been no appointments of QCs in NSW. Thus, assuming one accepted the view expressed by Kirby P, given that the change occurred, the proposed reintroduction of the monarch into the appointment process of silks may be seen by some to be demonstrative in whole or in part of monarchical tendencies.

The comments to which the author was referring above go to what are some fairly clearly expressed views of those participants in the debate in that regard, including:

In an article in the Sydney Morning Herald article on 12 March 2014, McClintock described the moves to reintroduce queen's counsel as 'ridiculous', 'disingenuous' and 'dishonest'. He asked, rhetorically, in what sense are QCs counsel of, or to, Queen Elizabeth II? McClintock continued that the changes were 'disingenuous and mask a reactionary political agenda'. The same article quotes the Commonwealth attorney-general criticising the New South Wales Bar as 'a bastion of Keating-era republican sentiment'. Thus, it is difficult to separate the issues concerning the reintroduction of queen's counsel discussed above from the broader debate involving the monarchy within Australia. That latter issue is not—

something that the author owns as a subject matter of the article.

I just say about that that at the very least one might observe that the institute of Queen's Counsel, now King's Counsel, appears to be used as some form of alternative stalking horse—and in this case, as I have described it, in the form of a gutless, half-baked ideology—for what is undoubtedly a substantive debate that can occur. If that is the government's agenda, then let's hear about that.

I will be the first to give them credit if the government walk in the front door and say, 'Yes, that's precisely what we want to do here, we want to have a debate about all of those institutions that bear some connection in this way to those so-called anachronisms that the government might advance arguments in terms of moving on from.' But that is not what we have been presented with; in fact, it has been disavowed.

It has been basically sold to this parliament and this state as somehow, 'Get with the program, folks, this is where all the cool kids are going.' That is the sort of level that the Premier is at, and it is the level that this argument has been pitched at by the government—a sort of 'That's what they're all doing in New South Wales so we ought to get on board.' Never mind the fact that it is in a portfolio bill, sort of semi-buried, not to be really ever advertised or owned or really articulated fully as the reasons why, but 'That's where the cool kids are at in other jurisdictions so we ought to get on board.'

That is not the case either, because if it was the cool thing to do, if it was the flavour of the times a decade or two ago—a decade or two or three, now; time passes—then we would have seen the kind of acquisition that President Kirby referred to back in 1993 of that institution, and yet we have seen the contrary.

What we have seen is—let's highlight them: Queensland, Victoria and, indeed, right here in South Australia—a considered review based on experience has occurred and we have seen the reinstatement of those institutions of long standing. So it certainly rises significantly higher than the sort of case that the Attorney has put in respect of the use of the title being of no greater import than its association with some sort of historical anachronism, so styled.

So what are we to do? In bringing these matters to attention in the house, I am really calling on the government to do two things: first, to see its way clear to proceed with the uncontroversial aspects of the bill—somewhat understated, if you like; they might warrant even more precise description—proceed with those and then leave aside consideration, as it might be, of any government agenda that might be represented by what is contained in clauses 31 and 32. Leave that aside for the time when the government is prepared to walk in the front door of this parliament and say, 'Here's our agenda, this is what course we are charting in terms of the future of South Australia.' Those are important debates.

Just as President Kirby highlighted the situation in Sri Lanka and Nigeria and drew the comparison with those jurisdictions that had charted a course indeed to become republics, if that is the agenda, then let's hear about that up-front, because unless and until we see a proposition that is as thoroughgoing as that, we rise no higher than this sort of gutless version that is sort of hidden somewhere and is supposed to somehow send a message.

I highlight that for so many years now we have had a situation in this state where—and there are about three categories of them—Senior Counsel are in a position to make an election themselves as to whether or not they seek the royal prerogative. They can make that decision themselves, and you have individual freedom and choice. We also have a situation of now long standing in South Australia where there is complete separation from executive government in this debate, and so it is unsurprising that essentially the entire bar in South Australia is left at a loss as to why we are where we are and the vast bulk of the profession as a whole.

I have adverted to what has transpired over the course of the experience and debate going back to President Kirby's remarks in 1992 and this sort of expectation that, as time passes, having made that change, that will acquire its own legacy of importance, and the justice system will establish a recognition of that new title—not so, based on the experience in Victoria. We know because the Hon. Murray Kellam AO, going back to July 2015, conducted a review for the purposes of the debate in Victoria. At paragraph 92 of that review, the Hon. Murray Kellam observed:

There is a public interest in not adding to the presently existing confusion about the roles and titles of Queen's Counsel and Senior Counsel, by again changing the system (this time to abolish the rank of Queen's Counsel). Such a move would create incoherence. As the Attorney-General said in his press release of 22 January 2015, 'I am mindful that constantly changing the government's position on QC’s has the potential to damage an important legal institution'. That statement recognises the potential to harm the perception of Victoria as a centre for legal services and detrimentally impact the export of Victorian legal services internationally. Put another way, it is difficult to articulate any public interest to be served by dispensing with the Current System. Although submissions made to me asserted that the public interest would be served by so doing and in particular because 'a single term to denote senior counsel is to be preferred,' the fact remains that irrespective of what decision is made by the Attorney-General, there will (unless some arbitrary and retrospective step was capable of being taken) remain a two tiered method of identifying the leading members of the Bar in Victoria for the foreseeable future.

He goes on on the topic particularly of Queen's Counsel as an anachronism, which he observes is defined by the Shorter Oxford English Dictionary as 'something or someone out of harmony with the time'. He observes:

A strong theme in the submissions in opposition the Current System (which advocate a change to appointment of Senior Counsel only) is that the office or title of Queen’s Counsel does not reflect a modern, pluralist society like Victoria (or Australia). It is argued that it is an undesirable anachronism, particularly considering the loosening of historical ties between Australia and England, and the possibility of Australia becoming a republic in the future. One of the submissions received put it in these terms:

'The title of Queen’s Counsel is an anachronism in contemporary Australia. This was recognised by its progressive abolition throughout Australia in the late 20^th and early 21^st centuries. Its recent reintroduction in Queensland is both anomalous and retrograde and should now be reversed'.

I pause there to observe that there you have encapsulated, in 2015, the coming and going of views and, particularly, reference to that other jurisdiction in Queensland that had by then reintroduced the title. I quote again from the Hon. Murray Kellam AO:

The reality is, however, that the designation of Queen’s Counsel has only a remote connection with Australia’s monarch, and that the community understands the title to be only a mark of legal excellence attributed to barristers of high-standing and ability. In this sense, it is not unlike other historic designations used in common parlance, such as a 'Rhodes Scholar'—which invokes the image of young Australians studying at Oxford University, not Cecil Rhodes and his activities in Southern Africa.

He continues to observe:

Our democracy is a product of its history. Many institutions have terms and practices which reflect that history. For example our adoption of the Westminster system leaves our parliamentary process redolent of language, processes and practices which some may regard as anachronistic and others as traditional and important to the institution. In my view the relevant question is whether such a process or practice has a useful public purpose, irrespective of whether it is the subject of language that may be in the eyes of some, an anachronism.

I adopt those observations, informing as they did the circumstances as applied in those some several years prior to our own debate here in South Australia about the reinstitution of those titles. The author concludes, and I quote:

As, stated above, and on balance, I conclude that the advantages of retaining the Current System outweigh the advantages of engaging in further and more confusing change at the present time. In coming to this conclusion I observe that the majority of submissions, both those in favour of maintaining the Current System, and those in favour of retaining the office of Senior Counsel only, were well reasoned and thoughtful. It is clear to me that thoughtful and reasonable people do have honestly held contrary opinions about the matters in issue. Members of the Bar for whom I have considerable respect have expressed opinions and maintained arguments which are completely opposed, but have done so with civility and reasonableness and in accordance with standards of conduct which are one of the hallmarks of the Victorian Bar. The conclusion I have reached at this time is based upon my consideration of what I see as the relevant evidence pertaining at this time to the principal issue, that is, should the Current System be retained? Taking into account the clear importance of the matter to members of the Bar and the community, and the damage that may be done to the institution by yet another change, I have concluded that no substantive change should be made to the Current System.

I adopt those remarks and I refer members generally, without referring to it further, to the entirety of the review, containing as it did a review of the office itself, including a history of the office of Queen's Counsel, a history of the appointment in Victoria, a comparison with both Queensland and New South Wales and other jurisdictions, and consideration of a wide range of public interest matters.

That, by the way, is the kind of thoroughgoing analysis, thoroughgoing treatment, in a debate that I would suggest members of the senior bar, members of the legal profession in general, certainly all of those who are engaged in service to the justice system, are entitled. It is something far more significant than a couple of clauses buried somewhere deep in a portfolio bill. It is to be noted both the way in which this is being foisted upon the parliament and the substance of the change that it would effect if those clauses were passed.

I once again urge the government to rethink clauses 31 and 32 and to treat the house and the debate within the house with that level of coherence that renders the results of debate in this place capable of being responded to effectively by the government. Let's have the debate, if the government has the stomach for it, as to the substantive matters, the subject of clauses 31 and 32, on their own so that all of those matters that run far more broadly than only their effect in terms of the senior bar can be properly addressed.

I referred to the members of the senior bar in particular because there is a substantial number of those members of the senior bar who were appointed in this state as Senior Counsel at a time when there was not any choice about the matter. There was no possibility to make an election. Those Senior Counsel have taken on that role and title.

I think all of those, in fact—and I stand to be corrected about this, but I think I am right—who were appointed Queen's Counsel at a time when there was no alternative as to the matter, no possibility of being appointed Senior Counsel because the designation was not established, who were appointed at a time during the reign of Her late Majesty Queen Elizabeth II and therefore as Queen's Counsel, have since converted to King's Counsel automatically and, may I say, have been caught up in a debate as to the relative indications that might be drawn from association from that title to what the Attorney has described as the anachronistic association with the monarch.

I know that that sort of observation is felt very sorely by that particular subset of King's Counsel in this state, and I have adverted to my interest in the course of the committee in due course to expression that those Senior Counsel in particular might have been moved to address directly to government. I understand that they have. I draw that from the Attorney-General's remarks in another place. I understand that that group has written directly to the Premier and that the Premier may have handed that correspondence to the Attorney-General; indeed, it is available to the government and the government is considering it.

I have made clear that I do not have any such letter, and the Attorney has elected not to table it. That may be appropriate unless and until the parties to it have consented, but it is very important that the government takes seriously representations particularly from that cohort because—and I know from personal experience—there are within that group so many senior advocates, leading advocates in this state, who take very seriously their role in terms of the justice system, who take very seriously their duties to the law and the court and, in turn, their clients.

There is an abiding association with those duties and their importance and the contribution that they connote to that title of King's Counsel. Sweeping it away via a couple of clauses buried somewhere within a portfolio bill is not good enough. It is entirely inappropriate. So I think, as is hopefully made clear in the course of this debate, we have in South Australia our own set of circumstances. We have in South Australia a set of circumstances in terms of the appointment of those most senior advocates in this state. It has been through a process of considerable thought and review only in recent years, and for that to be just cast aside as some sort of second-hand measure by this government in the form that it has is highly regrettable.

I could say more about the balance of the bill. I have had some observations to make about the way in which the South Australian superior courts proceed via the use of Masters in the interlocutory stages of a matters process to trial that is distinct from a docket system. There is no suggestion that there is any substantive change from that. That is another substantive debate that could occur, but we are not doing that. The government has just come along and said, 'We would like to change the names of these judicial officers.'

If it emerges—and I am concerned that this might occur, because the Bar Association and the Law Society have said they do not express any particular view about this, and of course judges are not in a position to express any view themselves—that in fact there was actually no call for any of this change the subject of the 49 clauses out of 51, and it was just some sort of stalking horse that was dreamed up by the government as a means of providing cover for these two clauses, then all the more scandalous the picture will be.

I am prepared to regard it as a benign, innocuous, unremarkable set of changes. If it emerges that there is anything more to it than that in terms of masking the agenda, then that will be all the more murky, all the more turgid. That will emerge over the course of the time ahead. For the time being, on the face of it those changes that are the subject of those 49 clauses, so be it. I will be glad to refer to those Masters in terms of Associate Justice and Associate Judge in due course, if that is what occurs.

Clauses 31 and 32 are where the controversy lies. In making what have been some, I suppose, relatively thoroughgoing remarks in contribution to the debate, I really want to make clear that we do not lightly embark upon this process of change. We can hear all of this sort of talk about how there are more important things to go on with. We have a curious situation in which the government, notwithstanding having looked askance at the debate when it occurred in the last parliament said, 'What are we doing here having a debate about this subject matter?'

Albeit coming against the background of all that thoroughgoing consultation with the profession, we have the government coming in here and saying, 'We have 20-odd bills on the agenda but we are going to prioritise this one.' It is not the way to go about it. It bears a more respectful consideration, as was the case when changes were made only a short time ago.

It is telling that the position of the senior profession, the position of the association that represents members of counsel and the society that represents the bulk of legal practitioners in this state remain united in the view, nearly unanimous in terms of counsel—members of the Bar Association—that this is a wrong step to take. All point to this being a regrettable moment in the life of this Fifty-Fifth Parliament. It comes against evidence, it comes contrary to the profession's view and it ought not to be proceeded with.

It is not too late. We will go to a committee at some stage in the future. If the government is still of a mind to proceed with the bill more broadly, I think I have spelled out a way in which that can be done quickly and uncontroversially and we can have a debate in due course about those two controversial matters in an appropriate way. Not this way. Not now. I urge the government to reconsider.

Mr BATTY (Bragg) (20:43): I am going to be brief, not only because I am mercifully time limited, not only because of the hour of the night, not only because we have had the benefit of the shadow attorney's significant contribution over many hours, over many days, now all of which I agree with—

The SPEAKER: I reckon he wishes he was on three-minute billable increments.

Mr BATTY: I agree with, I adopt, but I will not repeat, but also because I do not want to relitigate the debate we had in the last parliament on this very matter. Indeed, I share the view of the South Australian Bar Association that it is regrettable that the government seeks to promulgate certainly the KC/QC aspects of this bill just four years after this act was already amended following extensive consultation and following an extensive debate in this place.

Nevertheless, we do have this bill before the house innocuously titled Statutes Amendment (Attorney General's Portfolio) Bill that seeks to do two things. The first is change references to 'Master' in the act to 'Associate Judge' and 'Associate Justice'. I understand these amendments have been made at the request of the Chief Justice and the Chief Judge following a resolution of judges of the Supreme Court and District Court to discontinue the title of Master in their respective jurisdictions. I understand that South Australia is the only jurisdiction to retain the title of Master. It has been or is in the process of being phased out in other jurisdictions.

Some have raised some concerns with this aspect of the bill. As a former Federal Court associate some have raised the point that it might cause some confusion between associates and associate judges now, but really I see this as a relatively uncontroversial change. It is a matter for the courts and it is a mere change in terminology, a change in words.

But the second aspect of this bill is much more controversial and it removes the ability to appoint King's Counsel and this is an aspect of the bill that I cannot support. There are a few reasons why I cannot support this idea of removing the ability to appoint KCs. The first fits under the heading of: what's the point? The second fits under the heading of: no-one likes this idea. The third are some substantive arguments against removing the ability to appoint KCs. I want to look at each of them briefly in turn.

So turning to the first of them, which is: what is the point? Why are we prioritising a bill tonight in this house that will have nearly zero impact on nearly all South Australians in circumstances where the issue was settled by the last parliament only a few years ago? I can borrow the words of the member for Kaurna when the previous parliament debated this issue and he said at that time:

…at this time of economic shock waves, the second highest priority bill for the parliament this week is about the title of Senior Counsel and Queen's Counsel at the bar, which is a pretty incredible decision by the government, that this is of such high priority for our state parliament to be considering at this time.

I can literally lift that argument right now where we find ourselves this week having it as the second priority bill before this house and sitting late to try to settle the issue. The member for Kaurna went on in his contribution the last time we prosecuted this issue, which again I remind you was only a few years ago. He said:

I cannot tell you the number of times I have been down to the Seaford shopping centre and had people raise with me at stalls the importance of dealing with this very important issue of Senior Counsel and Queen's Counsel. I cannot tell you that because it has never actually happened. This is of such small importance to the vast majority of South Australians at this time of great upheaval in the world, and we are using parliament's time to deal with this matter. It shows what a lack of an agenda this government has.

It does. It shows what a lack of agenda this Malinauskas Labor government has. What else does it show? What has changed? Are people at the Seaford shopping centre suddenly raising the issue of King's Counsel and Queen's Counsel with the member for Kaurna, or are they talking about cost of living and ramping and rising crime? No. No, apparently now they are talking about the issue of Senior Counsel, Queen's Counsel and King's Counsel.

I might add as an aside that this issue actually does get raised with me at the Burnside Village shopping centre, but only for them to tell me that it is a terrible idea. I could go on from the debate last time and borrow the questions from the now Attorney-General who has introduced this bill into the other place who had a whole series of questions about what we call Queen's Counsel or King's Counsel. He said at the time:

…how many dangerous child sex offenders will spend longer in prison as a result of this bill passing?

I quote again:

…how many further recommendations of the Royal Commission into Aboriginal Deaths in Custody will be implemented as a result…of this bill?

I quote again:

Can the Treasurer explain in any way how our criminal justice system or our justice system will be better for South Australians as a result of the passage of this bill?

But four years on, and today these matters are far less important than trying to prosecute the issue of King's Counsel and Queen's Counsel. The need to be talking about how silks refer to themselves is far more important than ramping, than cost of living, than rising crime rates, and the only justification that I have seen so far from the government for introducing this bill is that it is going to modernise language—but it goes a lot further than that.

This is more than simply just striking out a word and replacing it with another word. In this case, it is quite distinct from the first aspect of the bill, where we are simply striking out references to 'Master' and replacing it with another word. What this does is remove an entire process by which we can appoint King's Counsel; indeed, it removes an ability to appoint King's Counsel.

In any event, the language being used is as modern as this parliament determined only four years ago. In my view, the profession here is frankly going to look ridiculous if we keep chopping and changing every four years how we refer to silks. It is embarrassing, and it is also unfair for those who might want to apply for the title in future.

I do appreciate the irony of having a very lengthy debate over the title, and what is the point in doing so in a lengthy matter, so I will move on to my next point which is that no-one likes this idea. This is an issue that nearly exclusively concerns the legal profession, and they do not like it. We have heard already that the opposition has received copies of letters from both the South Australian Bar Association, as well as the SA Law Society, indicating they do not support this bill.

Indeed, last time when the previous parliament considered this very same topic there was extensive consultation. At that time, the South Australian Bar Association reported that 98 per cent of their members were in favour of reinstating QCs, and the Law Society reported that 70 per cent of their members voted in favour of reinstating QCs. Indeed, what we have seen in the ensuing four years is a significant uptake of the postnominal QC from SC.

There only appears to be two people who do like this idea: the first is the Attorney-General, who I note ultimately voted to support the bill reinstating QCs only a few years ago, but now seeks to reverse it here tonight without really articulating still any good reason why, and the second is the Chief Justice, who has been participating in what I think he has described as an unusual and unpleasant debate on the issue over the past few weeks, and his crusade seems to be focused on two points. First, that this bill is necessary to maintain the independence of the court in this process.

The trouble with this argument is that there is no possibility of any government interference in the process of appointment of KCs under the current legislation. Indeed, being appointed a silk by the court is a necessary prerequisite under the current legislation for any appointment as a KC, so in no way can I see this current act usurping the role of the justices of the Supreme Court in the appointment of silks. Secondly, his argument was that the bill is necessary to prevent the people seeking to use the title of QC or KC for their own personal exploitation.

That is an argument that the South Australian Bar Association have certainly taken some exception to, and I think it was described as 'regrettable'. I quote their response to this argument from the Chief Justice. They said:

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.

This is a matter solely for the legal profession. The two major bodies representing the legal profession in this state, being the Bar Association and the Law Society, are overwhelmingly opposed to this bill, and the only two people who seem to be in favour of it are the Attorney-General, who has not articulated a reason why, and the Chief Justice, whose arguments I do not think hold.

Thirdly, there are a number of substantive arguments against this bill. With respect, I do not want to relitigate the very lengthy debate that the previous parliament had, but I certainly fully adopt the arguments from the Law Society and the Bar Association on why the KC postnominals should certainly be retained, including the fact that the title of Queen's Counsel or King's Counsel now is a nationally and internationally recognised designation of seniority and status, and that having that title is advantageous with respect to the broader community when retaining silk to be involved in major and complex litigation, and also arbitration and mediation in various different markets.

They have also raised the issue that there is confusion in the broader community regarding the difference between Senior Counsel and Special Counsel, and they also point out quite rightly that the uptake of the postnominal QC from SC, where it has been made available, has been very high, and that is indicative of the perception, even within the profession, of the status associated with that postnominal compared with SC.

All of those arguments and many more were ventilated much more fully only four years ago. I think they were valid then, just as they are valid now, and I urge those opposite to listen to those arguments and seriously consider them. The Attorney's attempts here to cancel the King should be abandoned. There is simply no point, no-one likes the idea and there are very valid substantive arguments against the proposal. With that, I say the house should not support those aspects of the bill.

Mr WHETSTONE (Chaffey) (20:57): I rise to make a contribution. The shadow attorney has covered most of what I wanted to say in his contribution, but I think the member for Bragg has also eloquently put his issues. He did not hear a lot of this when he was on street-corner meetings, nor did he hear a lot about this at his local shopping centre. What we are seeing here today is the Attorney-General's portfolio bill that has raised a number of eyebrows in the legal fraternity. I know the shadow attorney has grave concerns about not only exactly what this bill will mean to our law representatives around the state but what it will mean to the representation we see in the day-to-day legal world.

I want to say that, when the Legal Practitioners (Senior and Queen's Counsel) Amendment Bill was enacted under the former Liberal government, with members of the Labor Party voting in support of it, the justices of the Supreme Court determined to promulgate the Uniform Civil (No. 3) Amending Rules 2020 that were published in the Gazette No. 99, dated 24 December 2020, pursuant to which legal practitioners in South Australia could again make application to the court for appointment as a Senior Counsel.

This was all preceded by extensive conferral between government, the court, the South Australian Bar Association and the Law Society of South Australia. Remarkably, the now Attorney-General, Kyam Maher MLC, moved an amendment to the bill to change the word 'shall' to 'may', so as to give government a discretion as to whether or not it would pass through an SC request that they be appointed King's or Queen's Counsel.

The legislation as passed removed any possibility of government interference or discretion in the process where a person appointed Senior Counsel exercises the choice to seek appointment as King's Counsel. The Legal Practitioners Act, as it stands, gives those persons who may be appointed Senior Counsel a choice to seek the postnominal KC. There is nothing in there that interferes with the process by which Senior Counsel are selected. There is nothing in there that inappropriately undermines the independence of the courts. There is no wicked problem needing a solution. The bill is utterly unnecessary.

The concept of the court appointing Senior Counsel was introduced into South Australia by then the Chief Justice, John Doyle, in response to the then Rann Labor government's refusal, for a political reason, to act on recommendations from the court as to who ought to be recommended to the Governor for appointment as the Queen's Counsel. At that time, I note, current Chief Justice Kourakis was South Australia's Solicitor-General, whose role is partly to provide advice to government. There was an unusual flurry of media reporting recently, identifying public comments from the Chief Justice in relation to these matters. Presumably, the Attorney-General and the government have given weight to the sentiment behind these comments.

There is the suggestion that counsel may benefit from the use of the term 'KC' rather than 'SC' when it comes to having the significance of their appointment understood, particularly in the context that the individual may have a client from a jurisdiction where the term 'KC' is a familiar one and 'SC' is not. In response to this suggestion, I quote the comment made on FIVEaa radio:

What is offensive about that…they do it for personal reasons, for personal exploitation of an office that is in the public interest.

The Advertiser summarised it in the following terms, and I quote:

South Australia's top legal eagles are appointed 'silk' to serve the public and not 'exploit' clients by using a royal title to charge more money, the state's top judge says.

I understand that a number of senior practising lawyers have taken significant offence to this suggestion, and it is disappointing that the government is going along with it. The truth is that there is no evidence that KCs charge more than SCs. On the contrary, a straw poll of solicitors' firms in South Australia revealed that persons with postnominal KCs did not charge discernibly more. In fact, in a number of instances, SCs charged more, and SCs in New South Wales charged even more.

It is also noteworthy that these assertions were never raised when the reinstatement of Queen's Counsel was the subject of extensive conferral and debate between October 2018 and September 2020. It is fundamentally wrong to suggest that the choice to use the postnominal KC rather than SC is motivated by a belief that KCs attract higher fees. Many who have made the choice in this state have done so having regard to clients' wishes, market dictates and intense competition with barristers interstate, where two of the three largest bars at the top level are overwhelmingly comprised of King's Counsel.

It is part of the role expected of a silk that at the criminal bar they will take briefs on legal aid, and at the civil bar they will take deserving cases for no fee or at a reduced fee, or on a 'no win no fee' basis, and many at the senior bar do so.

Two persons employed in the Crown Counsel section of the Crown Solicitor's Office also requested and were appointed King's Counsel, and it is obviously untenable to assert that those persons did so for personal gain, bearing in mind that their salaries are fixed in accordance with the Public Service scales. There have been a number of appointees to the bench who took silk after October 2020 and chose to be appointed Queen's Counsel. They are also worthy appointments in these capacities.

The Attorney-General, Kyam Maher, has stated that the change is sought to be brought in by reason that the use of royal titles such as King's Counsel are an historical anachronism and that it will bring South Australia into line with New South Wales, where there are only Senior Counsel appointments. It may be disappointing to the government, but the fact is that South Australia remains a constitutional monarchy. We are not a republic. South Australia remains a constitutional monarchy and until the state or the commonwealth becomes a republic, references to the monarchy are in fact not anachronistic.

Both the Attorney-General and the Chief Justice have sworn oaths. Those oaths are of allegiance to Her or His Majesty. As to the second, it is critical to understand that the system in New South Wales for the appointment of Senior Counsel is fundamentally different to that in South Australia. In fact, New South Wales appointments of Senior Counsel are made by and in accordance with a detailed procedure of the New South Wales Bar Association.

The Supreme Court of New South Wales and its justices are not the appointors of Senior Counsel. Accordingly, it is simply false to suggest that the change is somehow to bring South Australia into line with New South Wales. The postnominal KC apply in Victoria and Queensland, where there are collectively 381 King's Counsels. There is no legal argument for this bill.

The bill will do nothing for the constituents of Chaffey. The bill should not be a priority for this government. The fact that the government has prioritised it tonight is baffling and points to their terrible priorities. This house should oppose the bill. As members on this side have stated on a number of occasions: why tonight? Why have we pushed important priority bills to one side to bring this Attorney-General's portfolio bill into this house tonight? We are sitting here tonight until it is done. The question is why, and no-one has given me an answer, particularly the government.

I think the government should rethink. I think the government has a duty to the people of South Australia to be honest and to reconsider what pushing this bill through at a late stage really does mean to the people of South Australia.

Mr PEDERICK (Hammond) (21:07): I rise to speak to the Statutes Amendment (Attorney-General's Portfolio) Bill, which was introduced on 2 May 2024 by the current Attorney-General, the Hon. Kyam Maher. I agree with the contributions from this side of the house. Why are we here? Why are we here debating this bill into the night, the night before the budget, where all of a sudden this is the top priority, not dealing with payroll tax issues, not dealing with cost-of-living issues, here we are debating something that does not even need to be debated?

The lawyers do not want this. To me, it just seems like it is a left-wing republican push. They are the only people who want this legislation to go through. Why do we not salute our legal people who have the ability to previously be Queen's Counsels (QCs) and now, obviously, King's Counsels (KCs) and give them that opportunity to have the appropriate title in the great governance sector that we have in this state?

We are not a republic. We are set up in a monarchist way. We have a Governor in South Australia, we have a Governor-General over the country in Canberra and, obviously, it goes through to King Charles in England. No matter what people think, that system works—and it does work—and we should respect that system. We saw what happened with the failed republican push many years ago, and we should respect where we are.

In regard to this legislation, what this bill would do is amend the Courts Administration Act 1993, the District Court Act 1991, the Environment, Resources and Development Court Act 1993, the Judicial Administration (Auxiliary Appointments and Powers) Act 1998, the Legal Practitioners Act 1981, the Magistrates Act 1983 and the Supreme Court Act 1935. The amendments would replace the existing title of Master with Associate Judge or Justice in the relevant courts, and in the appointment of King's Counsel, which was previously Queen's Counsel.

What we are seeing with this legislation is by stealth, amongst a group of other amendments, the Attorney-General and the Labor Party taking out the opportunity for senior lawyers to be titled as King's Counsel. We note that there are clauses that amend the abovementioned acts to remove references to Master of the District and Supreme Courts and replace them with Associate Judge of the District Court and Associate Justice of the Supreme Court as appropriate. Clause 4 provides for a deeming provision in the District Court Act to ensure that all references to Master in any other act of legislative instrument to be taken to be a reference to an Associate Judge.

As I indicated, there were a whole raft of amendments put into this legislation, this bill, and these previous amendments that I have just quoted are uncontroversial. But then we get to clauses 31 and 32, which would end the appointment of counsel as KC or QC by removing reference to Queen's Counsel in part 7 of the Legal Practitioner's Act, and substituting existing section 92 with a new section 92 that would abrogate the Crown's right of appointment.

In 2020—and I am very proud to have been part of the Marshall Liberal government—we reinstated the appointment of QCs, obviously now KCs, by way of the Legal Practitioners (Senior and Queen's Counsel) Amendment Bill 2020. This followed the cessation of appointment of QCs by the Rann government in 2008 at the request of Chief Justice Doyle. The then Labor opposition supported that bill.

The Law Society of South Australia and the South Australian Bar Association have written to numerous members of parliament explaining their opposition to the abolition of KC appointments. The South Australian Bar Association notes that, under the current process for appointment as KC, there is no possibility for government interference as occurred under the Rann government when the title was first removed.

The Law Society of South Australia stands by its remarks to the Attorney-General at the time, the Hon. Vickie Chapman, in 2019, that the reintroduction of the title is supported by the majority of its membership, and remains of the opinion that it should be an option, and be available to those appointed by the court.

In regard to what happened back in 2020 with the reintroduction of QC and the model that was introduced under the legislation then, under the current act as we are seeing it now the Supreme Court of South Australia will appoint legal practitioners as SC in accordance with its rules.

Any person who has been, or will in the future, be appointed by the court as SC may, if they choose, make a request to the Attorney-General for recommendation to the Governor to be appointed as QC or King's Counsel, as the case may require, which obviously is the case now. Upon the application being made, the Attorney-General must recommend to the Governor that the legal practitioner be appointed as KC, and the Governor may by notice in the Gazette appoint a legal practitioner now as a KC.

Any existing or future SC who may not wish to apply for appointment as QC or KC will continue to be known as SC and will be entitled to use the postnominal SC. The order of precedence for SC appointed as QC will continue to be determined in accordance with the date and terms of his or her appointment as SC.

In 2008, the Labor government at the time, at the request of then Chief Justice, His Honour John Doyle AC, ceased the appointment of Queen's Counsel. That was following a consistent trend across Australian jurisdictions to discontinue the use of the QC designation in preference to the Senior Counsel title. At that time, the appointment of SC in South Australia commenced on 12 May 2008, with the making of the Supreme Court Practice Direction and was governed by chapter 17, part 12 of the Supreme Civil Court Supplementary Rules 2014.

The supplementary rules provided that application for appointment of SC had to be considered by the Chief Justice in consultation with an advisory committee of three judges of the Supreme Court, as well as broader consultation more generally with other relevant bodies within the legal profession, including the Attorney-General.

What we saw soon after that and in recent years, obviously, is that a number of jurisdictions have reinstated the use of the QC title, following strong support amongst the legal profession. In 2013, Queensland reverted to the QC title. In 2014, Victoria made changes to give SC the option of applying to the Attorney-General to be recommended for appointment as QC by the Governor in Council or to continue using the SC title.

On 1 August 2018, the South Australian Bar Association passed a motion at its AGM expressing strong support for reinstatement at the time, which was appropriate, of the QC title. The proposal was based on a similar model in Victoria, which allows SC to remain as SC or elect to be appointed as QC. A survey was also put to all members of the legal profession in South Australia by the Law Society. The survey yielded favourable results, with 67.26 per cent of respondents answering in favour of there being a choice between SC and QC.

You would have thought those numbers, as they did then, would still stand up as far as any inspection by the Attorney-General, or anyone else in the legal profession for that matter. The profession has supported an option to allow for an SC to be a QC. This is the previous legislation for an SC to be a QC on the basis that:

there is widespread misconception amongst the general public and it is the experience of some South Australian SC that the SC title is less well known and regarded than the QC title, which is universally recognised;

there is concern amongst other Australian jurisdictions that the SC title places Australian SC at a commercial disadvantage when competing for international briefs, particularly in the Asia-Pacific region where the SC title is less well known; and

there is confusion amongst the public about the differences between the rank of SC that is conferred by the court and in-house counsel, who are self-described as Special Counsel or SC.

So I think that spells out the very reason apart from the issues I described—about us running this country and this state under a monarchy and the Westminster system and yet for some strange reason people want by stealth to pull it apart. This is part of those processes.

I think apart from having the rank of, now, KC easily recognised, especially in the broader international sector, as a rank for leading lawyers—so it is easily recognised across the board and across international borders—we also see confusion at a local level where the question arises: what does SC mean? It could be the in-house title 'special counsel', which essentially is an in-house title of a legal firm to give to certain members of their legal firm and is not necessarily a formal way of conferring that title on those members.

This is where the problem is: what we see now with this legislation is instead of having KC we are going to have the postnominal SC, but what does it mean? Is it 'special counsel' or what it is supposed to mean now, which is 'Senior Counsel'? You can easily see that in a busy, dynamic world people at any level—at any level; you do not have to be in the legal world—might understand that or misunderstand it. The simple fact is I can see where many, many people can be confused.

And for what? For what reason? For what point? Why are we going down this path, when it would be just so simple and out of respect for the Westminster system that we have in this state and this country and the monarchy we live under to just respect the opportunity for those leading lawyers to have the opportunity to be titled King's Counsel? That is all we ask for.

I have noted the comments from my colleagues on this side of the house and certainly from the shadow attorney-general his great contribution on this matter, because he is very learned on these matters. We do need to wonder why the change. Why are we going down this path? It is totally unnecessary when there are so many other things we should be debating in this house on budget eve.

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Climate, Environment and Water, Minister for Workforce and Population Strategy) (21:22): I am pleased to close the debate. I thank everyone for their contributions, and I urge people to support the bill.

The house divided on the second reading:

Ayes 22

Noes 14

Majority 8

AYES

NOES

PAIRS

Second reading thus carried; bill read a second time.

Committee Stage

In committee.

Clause 1.

Progress reported; committee to sit again.