Bills

Legal Practitioners (Senior and Queen's Counsel) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 10 September 2020.)

The Hon. F. PANGALLO (11:01): I rise to speak on behalf of SA-Best in support of the Legal Practitioners (Senior and Queen's Counsel) Amendment Bill 2020. The bill has been introduced to break the current impasse for advancement in the legal profession in South Australia, according to the government. There have been no Senior Counsel appointments for some time now. It is safe to say the Chief Justice has a clear preference for the term 'Senior Counsel', himself being the only South Australian QC to hand in his appointment from The Queen in favour of adopting 'SC'.

Nevertheless, the judiciary has indicated its willingness to resume making appointments should the bill pass. It is arguable that a postnominal that includes reference to The Queen or The King, as may be the case, is loftier. On the flipside, it can be perceived as a symbol of privilege; it depends on who you talk to.

The first Queen's Counsel barrister was appointed in England over 400 years ago. In South Australia we look back to the year 1865. Selection has often been a rite of passage to a judicial appointment. The first woman in Australia to be appointed Queen's Counsel was our very own trailblazer for women, Dame Roma Mitchell, in 1962.

An appointment traditionally recognises outstanding ability, leadership, expertise and mentoring. That is still the case today whether you are a Queen's Counsel or a Senior Counsel. There have been moments in time when the government of the day has refused to make QC appointments and a stand-off has ensued.

These moments in time have been cited as a catalyst for change. The refusal to appoint Elliot Johnston, known for his communist views, and David Edwardson, for his clients, come to mind. To judge a member of the bar on his clients goes against the fundamental right to legal representation we should all be afforded.

Governments of the day have improperly interfered in the past, albeit by lack of action. The appointment of Queen's Counsel ceased in 2008 at the request of the then Chief Justice. It removed the role of the executive entirely and was to signal the end of the political silk. Some credit can be given to the growing republican movement, but I suspect it was related more to further enshrining judicial independence.

It is vital that appointments honour the independence of the judiciary, and for that reason we will not be supporting the Labor amendment giving discretion to the Attorney of the day. Whilst there has been a shift away from references to the monarch in recent years, the tide has turned yet again in some jurisdictions. Seventy of the 74 Senior Counsel in Queensland have opted to make the switch, with all new Queensland appointments now referencing the monarch.

Victoria followed suit in 2014 after a 14-year hiatus. The same year, it was reinstated at a commonwealth level. The Chief Justice indicated in a letter to the Attorney-General in 2018 that the judiciary would not participate in any scheme that saw a return to the executive assessing applicants for appointment. This bill does not do that. In fact, all appointments should be made by the judiciary. It only provides the opportunity for any appointed Senior Counsel to apply to amend their postnominal to Queen's Counsel should they see fit. I understand there would be no approval process; it would be automatic.

The Chief Justice, though not in support of the bill, has advised members of parliament, via a letter to the Attorney-General, that should it pass, judges would resume making appointments. In our consultations, we have heard from members of the bar who say their members overwhelmingly prefer the title of QC. They have told us interstate advocates are trading with a competitive advantage, both nationally and internationally, that our top barristers are on an uneven playing field competing for local commonwealth briefs.

Apparently, ASIC is bringing interstate counsel into the state when we have on par legal abilities right here in South Australia. I believe that 18 of the 25 Senior Counsel took up the opportunity to make the switch to QC when it was offered by the Attorney-General in March 2019. It seems to be preferred by the majority of senior members of the profession. There certainly does not seem to be an overwhelming appetite for SCs. According to the bar, international clients are insisting on briefing QCs in Asian markets. This is curious, considering the key arbitration hubs, Singapore and Hong Kong, do not appoint QCs themselves.

There is also an argument that the new-age use of the title 'special counsel' by law firms diminishes the Senior Counsel title. Law firm MinterEllison, for example, has 100 special counsel listed on its national website. It does have the potential to be confusing and misleading, especially to the layperson, and perhaps the profession could have more to say about this in due course.

We must remember that clients, the general public, do not brief barristers. Other members of the profession do that, lawyers who are unlikely to be swayed by a different letter in a postnominal over legal ability. This does seem to be an ideological issue more than anything else. The focus of the profession should be on the obligations of the role in providing exemplary leadership and mentoring.

In any event, whether our top barristers use SC or QC is not the most pressing issue the profession should be turning its mind to. Sexual harassment and its faithful companions, bullying and discrimination, are much more important matters to consider. I look forward to the overwhelming support of this place of my colleague the Hon. Connie Bonaros' motion instructing the Attorney-General to instigate an independent inquiry into these matters.

In terms of this bill, we support the judicial recognition of well-deserving senior members of the legal profession. If that means a return to the use of the term 'QC' by some, then so be it. With those words, I look forward to the next stage of the bill.

The Hon. R.I. LUCAS (Treasurer) (11:09): I thank the Hon. Mr Pangallo and other members for their contributions to the second reading, and look forward to the committee stage of the debate.

The council divided on the second reading:

Ayes 17

Noes 2

Majority 15

Second reading thus carried; bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: My question to the Treasurer, representing the Attorney-General in this place, is: in allowing for the appointment of Queen's Counsels, as this bill proposes, how many dangerous child sex offenders will spend longer in prison as a result of this bill passing?

The Hon. R.I. LUCAS: The issue that has been raised by the Leader of the Opposition has nothing to do with the bill that we have before us. If he would like to further explain his question and somehow relate it to the content of this particular bill, I am happy to endeavour to provide a response.

The Hon. K.J. MAHER: Can the Treasurer outline how many further recommendations of the Royal Commission into Aboriginal Deaths in Custody will be implemented as a result of the passing of this bill?

The Hon. R.I. LUCAS: Again, that particular question has no relevance to the content of this particular bill.

The Hon. K.J. MAHER: 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?

The Hon. R.I. LUCAS: I cannot add anything further than the answer I have given to the first two questions. If the Leader of the Opposition wants to play games by asking all sorts of questions extraneous to the bill, that is entirely his prerogative—within the standing orders, of course—but I think he needs to relate his questions to the clauses of the bill.

The Hon. K.J. MAHER: In relation to this bill, is the Treasurer aware of any reason why the Attorney-General herself, for I think the first time, personally briefed the opposition on this bill? Is the Treasurer aware of any reason why this bill is so important as for that to occur?

The Hon. R.I. LUCAS: The Attorney-General is a very competent activist and comprehensive adviser of anyone who is interested in her legislation—both herself, when she is available, and her office and her officers within the department. The nature of any discussions that the Attorney may or may not have had with the Leader of the Opposition or other members of the Labor Party I am not actually privy to. I leave that to judgement calls for the Attorney-General and I have every confidence that she will handle her portfolio, as she does always, competently.

The Hon. K.J. MAHER: Can the Treasurer explain if there is any difference in the instrument—I think it is Letters Patent—that appoint someone QC or SC? Is there any difference at all, in that instrument, between the two postnominals?

The Hon. R.I. LUCAS: One is actually an appointment by the Governor on the recommendation of the Attorney-General and the other is an appointment by the Chief Justice. There is a different process, but I am sure the honourable member is aware of that. I am not sure whether he has some other purpose in mind in terms of his question.

The Hon. K.J. MAHER: In the appointment as either Senior Counsel or Queen's Counsel, are there any privileges that a barrister enjoys that someone who has not had an appointment of Queen's Counsel or Senior Counsel has?

The Hon. R.I. LUCAS: I think perhaps the Leader of the Opposition can explain what sort of privileges he is wanting to ascertain someone might or might not take advantage of.

The Hon. K.J. MAHER: My question to the Treasurer is: has the Chief Justice written to the government outlining any concerns about the privileges that QCs may enjoy by virtue of the instrument of being appointed?

The Hon. R.I. LUCAS: As opposed to an SC?

The Hon. K.J. MAHER: No, as opposed to a barrister who does not have an appointment as a QC or SC.

The Hon. R.I. LUCAS: Whilst I have not read them, I understand the Leader of the Opposition or members of the Labor Party have copies of one recent letter and one older letter that the Chief Justice wrote to the Attorney-General about the issue. That is the only correspondence, I understand, so the Leader of the Opposition is aware of it. Certainly, my advice is that it has not been interpreted as the Chief Justice expressing concerns about privileges QCs might have over barristers. He has expressed his views, which the Leader of the Opposition and others have publicly enunciated in relation to the government's legislation.

In relation to the specific question the honourable member has asked, he has a copy of the letter or letters, as I understand it, and he can interpret those as he wishes. My advice is that there is nothing in those that could be interpreted as the Chief Justice complaining about the privileges that a QC has compared with a barrister.

The Hon. K.J. MAHER: I thank the Treasurer for his assurance to the chamber that all correspondence from the Chief Justice to the Attorney-General on this matter has already been forwarded to the opposition. Given the Treasurer's assurance, can the Treasurer please table all correspondence between the Chief Justice and the Attorney-General on this matter?

The Hon. R.I. LUCAS: No, I am not in a position to be able to do that. I am not aware and I will have to take advice from the Attorney-General in relation to that.

The Hon. K.J. Maher: We can adjourn it and come back after lunch then.

The Hon. R.I. LUCAS: You can propose that, but the government is not going to support an adjournment on that basis. As I understand it, two letters have been made publicly available. Evidently we did not provide it but the opposition, as I understand it, has a copy of it. They can explain, if they want to, how they obtained copies of the correspondence from the Chief Justice to the Attorney-General. In relation to the Chief Justice's views of the proposition, I think they are pretty well ventilated, and I think the Leader of the Opposition is very well aware of the views of the Chief Justice.

The Hon. K.J. MAHER: For the sake of clarity, can the Treasurer inform the chamber if, in fact, the only correspondence between the Attorney-General and the Chief Justice on this matter are the two letters that he has referred to, or is there other correspondence that has been kept secret?

The Hon. R.I. LUCAS: No, we do not know whether there is other correspondence from the Chief Justice to the Attorney-General. There may well be, but we are just not in a position to know whether there is other correspondence. As I said, the Chief Justice's views, as I understand it, are pretty well known in relation to this so it is not as though his views, however that has occurred, have not been publicly ventilated.

The Hon. K.J. MAHER: One of the arguments that has been put forward by the Attorney-General and others who support this legislation is that Senior Counsel in South Australia—and indeed from the largest jurisdiction in New South Wales where for 30 years there has also only been Senior Counsel—are at an economic disadvantage to those from jurisdictions which, I think, now includes the option in Victoria and Queensland to be a Queen's Counsel by virtue of the title. Is the Treasurer able to give an example of how that has been borne out, one example of where a South Australian Senior Counsel has lost out because they do not have the title Queen's Counsel? I am just asking for one single example of where that has happened.

The Hon. R.I. LUCAS: In answer to the question, I am advised that I am not in a position to give one specific example, but my understanding is that the Bar Association, in terms of their submission, have made that claim on the basis of the experience of some of their individual members. That is a view that they have expressed on behalf of some of their members.

The Hon. K.J. MAHER: For the sake of being abundantly clear, is the government, through the Treasurer in this chamber, not actually aware of one single example of where a South Australian Senior Counsel has been at an economic disadvantage because they are not called Queen's Counsel? Notwithstanding the Treasurer has indicated that he has heard stories, the sort of thing that would be admissible in no court, is there actually an example the Treasurer can point to for the claim that his government has repeatedly made as the reason for this bill passing?

The Hon. R.I. LUCAS: I cannot add anything further to the answer to the same question the honourable member has already asked.

The Hon. T.A. FRANKS: As many, including the Treasurer, in this place are fond of saying, I am not a lawyer, but my interest was piqued during this second reading debate on the term 'SC' being applied to more than one type of counsel in the legal profession. I have heard of something called 'strategic counsel' recently used in Australia, which I think is possibly new in terms of the culture of the legal profession here. What types of SCs are there in the legal profession in Australia?

The Hon. R.I. LUCAS: It would assist the committee if the member could indicate whether there is a particular individual and his or her name and whether or not—

The Hon. T.A. Franks: I will be getting there. I want to know the different types of SCs.

The Hon. R.I. LUCAS: But I would be intrigued to know whether or not that particular individual uses SC as a postnominal on their business card. I guess anyone can call themselves anything. There is no legal status to the term 'strategic counsel', if that is the honourable member's question. There are various positions where people do refer to themselves as special counsel, but again no legal significance applies to the term 'special counsel' or 'strategic counsel'. Again, my advice is there is no law that prevents anyone calling themselves strategic counsel, special counsel, super counsel, super-duper counsel, or whatever it is they might wish if they want to somehow get the title SC onto their business card.

The Hon. T.A. FRANKS: I think the Treasurer does know where I am going with this question, because I am intrigued that Xenophon Davis have been employed by Huawei as a strategic counsel, which I understand is something that was more in the American legal culture in the past. What are the legal requirements of a strategic counsel when it comes to the foreign influence register?

The Hon. R.I. LUCAS: The requirements of that particular legislation would be as specified in the legislation. I cannot offer a detailed response, but I would be surprised if it refers to the title that the individual or group might claim for themselves; it would be more in relation to their background and their activity that would activate that particular piece of legislation or not.

What they call themselves, I suspect, is of interest to us all, but what would activate provisions in that particular legislation would be more the nature of the individual, their background, their experience, where they have previously worked, and the nature of any other activities in which they might have engaged.

The Hon. T.A. FRANKS: I think I am wrapping this up, and I am happy to take it on notice. I raise this because it has piqued my interest, given that we are debating these postnominals but also the legal profession's own terms for the things it does and the particular privileges and protections it is afforded. My understanding is that legal counsel is not required to be on the foreign influence register, but I do not believe that strategic counsel has such a protection or privilege. Could the government come back with an answer as to whether or not a strategic counsel is a position that affords one protections or privileges of not being required to be on the foreign influence register?

The Hon. R.I. LUCAS: As imperfect as my knowledge is of that legislation, I am happy to take the question on notice, but I suspect the answer is that it does not provide any protections or privileges. I will seek further advice if I can and have the Attorney-General correspond with the member.

The Hon. K.J. MAHER: In relation to the other legal uses of SC, is the Treasurer able to outline a bit further? One of the arguments put forward by the government is that special counsel is confusing when we have Senior Counsel, the two uses of SC. Who holds themselves out to be special counsel, where do they work, what work do they perform and how does that lead to the confusion that the government claims between special counsel and Senior Counsel?

The Hon. R.I. LUCAS: My response is similar to those given to questions from the Hon. Ms Franks about strategic counsel. Special counsel, I am advised, has no legal significance, but there is no legal impediment—and as I understand it, it is occasionally used in commercial law where people hold themselves out to be special counsel—as I understand it or am advised, to their calling themselves special, or strategic for that matter, but it tends more to be, we are advised, in commercial practice.

The Hon. K.J. MAHER: To the government's understanding, are special counsel usually found in commercial law firms and as in-house counsel for companies, or do they practise at the independent bar, typically?

The Hon. R.I. LUCAS: My advice is that it is more common with in-house counsel where someone calls themselves special counsel.

The Hon. K.J. MAHER: I thank the Treasurer for that answer. Is the government aware whether there are any members of the independent bar, any practising barristers at all, who hold themselves out in South Australia as special counsel?

The Hon. R.I. LUCAS: My advice is that we are not aware of any—we are not guaranteeing that, but we are not aware of any.

The Hon. K.J. MAHER: So not being aware of any barrister holding themselves out as special counsel. I think the government is right, from my experience those who tend to invoke the use of the phrase 'special counsel' are in-house in commercial law firms or, more typically, in-house within companies as legal counsel. If we are not aware of any barristers holding themselves out as special counsel, when a solicitor comes to instruct a barrister for a case, how does the confusion arise in the solicitor's mind between Senior Counsel and special counsel if we are not aware of any special counsel as barristers?

The Hon. R.I. LUCAS: In the circumstances that the member has outlined, where a solicitor is seeking advice, I am not sure that I can add any detail to the honourable member's question about any potential confusion or not in that particular circumstance. Clearly, in the law and commerce generally, if you have people calling themselves special counsel or as the Hon. Ms Frank says, strategic counsel, there is no legal impediment to them putting SC on their business card if they so wish.

I suspect the government and the Attorney have been more particularly talking about that sort of confusion in terms of the legal and commercial marketplace generally, where people are calling themselves SCs. Some are senior counsels, some are special counsels and, as the Hon. Ms Franks indicates, some are strategic counsels.

The Hon. K.J. MAHER: Given that this is a great evil that the government is seeking to remedy with this bill, this huge confusion that exists in the population over SC on business cards, and notwithstanding the fact that, as the Treasurer has outlined, they are not aware of a single barrister who uses that, it would seem to me that they are very different markets for legal services. Given that this is one of the huge evils that the government is seeking to remedy in this bill, what prevents a lawyer or anyone else putting QC on their business card or letterhead?

The Hon. R.I. LUCAS: I am advised it is protected by the Letters Patent, so they are prevented from doing so. In relation to the issue, certainly from my viewpoint I would not characterise the fact that the parliament has been asked to address this issue as a 'huge evil', as is the exaggerated phraseology being used by the Leader of the Opposition.

I think the parliament is perfectly capable of chewing gum and walking at the same time. We can address substantive issues such as COVID-19 and we can address other issues such as QCs and SCs. We do not have to portray them—and I certainly do not seek to portray them—as a huge evil, a major issue of our time. Nevertheless, it is an issue that we are perfectly entitled as a parliament to address.

The Leader of the Opposition is entitled to trumpet and campaign against it, because he obviously sees it as a huge evil that the government is heading down this particular path, but I certainly do not characterise it as such. It is one of many issues governments are able to address. We have a particular view. The Leader of the Opposition is hugely offended by it, obviously; he can continue to mount his case. In the end, it will be determined by a vote of this chamber and another chamber.

The Hon. K.J. MAHER: I thank the Treasurer for his answer. Given that we have established that there does not seem to be a particular confusion in the market for legal services using, in different areas, the title SC, what is the quantum of the economic loss the South Australian legal profession has suffered because they have not been able to appoint QCs since 2007 or 2008?

The Hon. R.I. LUCAS: I hasten to say that I distance myself from the suggestion of the leader that 'we' have established, the royal 'we' there. He might have established in his own mind that that is the position. I can assure you, Mr Chairman, I have a different view and perspective of the legislation. In relation to his further specific question about an estimated quantifiable economic loss, the government has not produced a particular number. As I said, from our viewpoint it is a relatively simple matter for the parliament to decide: we are either prepared to support it or we are not. The answer to the member's question is: I do not have a number that I can share with him.

The Hon. M.C. PARNELL: My question is on a different topic. I will defer to the Leader of the Opposition if he is continuing that same line of questioning, but I have a different issue.

The Hon. K.J. Maher: Go.

The Hon. M.C. PARNELL: Go for it? Okay. We are on clause 4, which is the operative—

The CHAIR: No, we are on clause 1.

The Hon. M.C. PARNELL: Okay. I will ask a clause 1 question, which may or may not relate to clause 4 as well. The topic is the general mechanism for appointment and revocation of QCs. I note that the bill provides:

The Chief Justice may, on behalf of the Supreme Court and in accordance with the Rules of the Court, revoke the appointment of any legal practitioner as a Senior Counsel or as a Queen's Counsel or King's Counsel.

I was reminded via an article in the Sydney Morning Herald on 3 July that there was a major push to strip a certain Queen's Counsel in New South Wales of the title. The Sydney Morning Herald article is headed, 'Attorney-General seeks advice on stripping Dyson Heydon of QC title'. The first two sentences of that story read:

The NSW Attorney-General will seek advice about stripping Dyson Heydon of the title of Queen's Counsel after an investigation found the former High Court judge sexually harassed six staff members.

Attorney-General Mark Speakman told the Herald 'the allegations against Mr Heydon are appalling' and he understood community concerns about the former judge keeping the title.

The relevance of that is, first of all, in New South Wales apparently it is something that the Attorney-General has a say in. The bill before us provides that revocation of QC shall be the gift, or whatever the reverse of a gift is, of the Chief Justice. The Chief Justice, apparently, is to act on behalf of the Supreme Court and also must act in accordance with the rules of court.

The Sydney Morning Herald article referred to 'community concerns' as being a relevant consideration about whether a person should continue to hold this title, but under the bill before us it is the Chief Justice's call. He or she is acting on behalf of the Supreme Court, so it is unclear whether he or she is obliged to consult with her or his colleagues. Secondly, they must act in accordance with the rules of court. The question is: what are these rules of court? Have they been drafted? Have they been considered? What contents might those rules contain to ensure that community values are what are being upheld in decisions about whether or not to revoke someone's title as QC or KC.

I am asking the minister to explain how the system will work, especially in relation to these so-called rules of court, which I suspect have not been written, but the minister might have some advice on what is proposed be included in them, bearing in mind—I am working from memory here—the rules of court are largely written by the court themselves, but I think they are disallowable instruments in the parliament. So what work has the government done with the Supreme Court to draft appropriate rules for the revocation of QCs?

The Hon. R.I. LUCAS: My advice is that the rules of court are disallowable. They are not rules that are drafted by the government or the Attorney-General; they are drafted by the Chief Justice. I think the honourable member would understand the separation between those over there and those over here, if I can put it that way, so therefore this would be an issue for the Chief Justice.

The Chief Justice obviously has a view in relation to the legislation, and I am assuming without knowing that should the parliament have a different view, he would then have to set about drafting rules in relation to how he would go about it. As perhaps a guide and this is no more than a guide, I am told the now revoked rules as they related to Senior Counsel did state that a person admitted to the office of Senior Counsel is:

A person…whom the Court regards as having proven himself or herself to be an advocate of high skill, integrity, professional judgment, and independence justifying an expectation on the part of the public and the judiciary generally that…he or she will provide outstanding service in the course of the administration of justice.

There are at least words in there like 'integrity' and 'expectation on the part of the public' but that in and of itself is not an indicator, should the legislation pass, that the Chief Justice might draft appropriate rules—appropriate, I mean, to the Hon. Mr Parnell—in terms of what he and they might put in them.

In the end, should the Hon. Mr Parnell still be in the parliament at the time that (1) the legislation passes and (2) the Chief Justice introduces new rules, given the advice I have that they are disallowable, the Hon. Mr Parnell can be all over them and he can move to disallow them if they do not have appropriate words in them to his satisfaction. I cannot provide any more detail than that but it would be something driven by the Chief Justice, not driven by the Attorney-General or the government.

The Hon. M.C. PARNELL: I thank the Attorney for his answer. A comment that I would make in relation to the—

The Hon. R.I. LUCAS: You promoted me to Attorney.

The Hon. M.C. PARNELL: Sorry, the Attorney's representative in this place. Regarding the list of qualities that the minister referred to based on previous revoked rules of court, my quick analysis of those is that they related to professional qualities rather than personal qualities, notwithstanding words like 'integrity' were included but I took those in context as being in relation to professional ability, where society has clearly moved on from judging people such as judges purely on their ability to do their job, there are other attributes as well.

I accept the minister has said the rules are to be written by the judges, they will be tabled in this place and we will be able to disallow them. Two consequences flow from that. The first one is that they will be, if I can use the words, 'a job lot' of rules of court. They will be included with all of the other rules that allow the court to operate; therefore, disallowance of the rules of court effectively confines the court to operating under its previous rules. In other words, it is all or nothing. We throw them all out or we allow them all.

The question would be: if the new rules of court contained the criteria for the revocation of a QC appointment, would disallowance of the rules mean that a QC appointment could never be revoked? If this parliament disallowed Supreme Court rules, the Supreme Court rules are the only place where it sets out what has to be taken into account in revoking a QC, so the sword of Damocles, I guess, hanging over this parliament would be, if we dared to ever disallow Supreme Court rules that included the revocation provisions then a QC could never be revoked; is that correct?

The Hon. R.I. LUCAS: My legal advice is that no, the Chief Justice has the power to revoke. The rules of engagement, or the rules of the court, just provide description and detail. I am not sure why the parliament would want to stop the Chief Justice from having the power to revoke someone whom the Chief Justice wanted to revoke, but, putting that to the side, it seems counterintuitive to the proposition the Hon. Mr Parnell is putting. If, for whatever reason, the Hon. Mr Parnell, or indeed others who might form a majority, decided to continually disallow the rules to revoke—for whatever implausible reason I cannot think of—my advice is that the Chief Justice still has the power to revoke if he or she decides that they have to revoke somebody for the reasons the Chief Justice might have determined.

The Hon. M.C. PARNELL: I think the minister's answer does make sense, but just to make it clear, I was not suggesting that the parliament would use the disallowance power in order to stop a QC being revoked. As we know, these rules are a job lot. Yesterday, this council disallowed pages and pages of regulations. It was only number 25 that we did not like, but we had to throw the whole lot out. That is how it works.

I can perceive of a situation where the rules of court, for example, might make it too difficult to access paperwork, or might disenfranchise certain self-represented litigants. There is a whole range of reasons why rules of court might be inappropriate and why parliament might exercise its authority to disallow rules of court.

I do not need to ask a further question. The minister has made it clear that, in the absence of any rules, the Chief Justice still has that power and would just exercise it herself or himself according to their own judgement, and it would be as simple as that. I accept what the minister is saying, that there would still be the power to revoke, it is just that it would be completely unguided. I accept that answer.

The Hon. R.I. LUCAS: Just to add, the honourable member has, on a couple of occasions, referred to the fact that the rules of court would be a job lot. My advice is that that is not necessarily the case. There are still rules of court that exist. The only ones that have been revoked are the ones in relation to Senior Counsel. The new rules—insofar as I am guessing, because these are for the Chief Justice—would come back in relation Queen's Counsel and revocation. I think the proposition the honourable member is talking about in comparing it to yesterday's example is that the parliament would be restricted, because in getting rid of those rules you would be getting rid of every other rule that is there.

I think he is working on the mistaken expectation that all the other rules of the court have disappeared as well and they would all come back as a job lot. The advice I have is no, there are rules of court that are still there that apply to all the other things that they need rules of court for. What has been revoked has been in relation to the Senior Counsel issue. Therefore, if the parliament chooses to move down this path it is up to the Chief Justice to then have further rules of court in relation to this particular issue which, my guess is without knowing on the basis of past precedent, he and they would address in some fashion, but it would relate to that particular issue.

The Hon. I. PNEVMATIKOS: Who will this bill benefit: the community, clients and litigants, a proportion of the legal practitioners or profession, or the courts? Whose interests does this bill serve?

The Hon. R.I. LUCAS: It is the government's view that it is in the interests of the administration of justice in the state; therefore, there is a public interest, but obviously there is also an interest of legal practitioners, or at least those legal practitioners who support the view endorsed by this piece of legislation. I accept the fact that there are some other legal practitioners, as evidenced by the line-up of legally trained people in this chamber who argued against the bill, who have a different view.

The Hon. I. PNEVMATIKOS: In terms of the community, does this mean that the bill will result in fairer, affordable and accessible judicial processes?

The Hon. R.I. LUCAS: In my observation, I do not think the argument in relation to this legislation has hinged on 'affordable'. There is a range of other pieces of legislation or government policy that might relate to the affordability of the justice system not just in South Australia but the nation, but I am not aware that the debate on this has been about the affordability of the judicial system in the state.

The Hon. I. PNEVMATIKOS: The change in title—and I am referring to your own comments—how does this actually help the community?

The Hon. R.I. LUCAS: It is the government's view, as enunciated by the Attorney-General in the other place and to individual members as well, that in the overall administration of justice this is a policy change the government is prepared to support. The government has not held this out as something that is going to lead to a significant or momentous change in the administration of justice in the state. On the other hand, the government does not accept the characterisation the Leader of the Opposition has made that this is some great evil that is being corrected by the government through the proposition.

As I said, it is a government policy position that we have put to the parliament for the parliament, ultimately, to resolve. It is no more or less than that. We have had many pieces of legislation that do not change the world that we are nevertheless asked, as a parliament, to address whether we support them or not. This is another example.

The Hon. K.J. MAHER: I am keen to spend a little bit of time—and this has been raised—talking about the level of support within the legal community and profession for the change being proposed. We have spent time this morning establishing, in this committee, that there is no actual confusion between Senior Counsel and special counsel. We have established that we cannot point to any economic loss in the South Australian legal system as a result of having only SCs and, in fact, have established that the government cannot point to one single example of where someone has lost work because they are a Senior Counsel and not a Queen's Counsel. Can the Treasurer let us know the level of support within the broader legal community for this change?

The Hon. R.I. LUCAS: I think the Attorney-General outlined in her second reading explanation that the Law Society did a survey: I think there were 843 respondents, and 67 per cent—or 66.26 per cent or somewhere around that area—supported the option for QC once someone had been appointed as an SC. That is the evidence as provided by the association or body that represents lawyers in this state.

The Hon. K.J. MAHER: I appreciate the Treasurer cherrypicking the response rate. Is the Treasurer able to inform the chamber what that is as a percentage, firstly, of Law Society members who responded in favour of this, and then what percentage of that is of the legal profession in South Australia?

The Hon. R.I. LUCAS: As I indicated, it was 843 respondents, which as I understand it might be around about 25 per cent or so of members. For any survey—I am not sure how familiar the Leader of the Opposition is with the respondent rates in surveys—anyone who gets a 25 per cent response rate in terms of a survey instrument is generally over the moon in terms of the size of that particular survey result.

In the end—I am assuming the Leader of the Opposition is a member of the Law Society, although I do not know whether he voted—there are obviously lawyers who do not support the changes. At least one-third of the 843 do not support it and there may well be some of the people who did not respond. There may well be a significant number who could not have cared less and that is why they did not respond. A 25 per cent response rate is generally regarded by people with knowledge of survey instruments and market research as a very high percentage of respondents.

The Hon. K.J. MAHER: Can the Treasurer inform the committee of when the last trade-in or buyback scheme for SCs to change their postnominal to QCs was? When did that trade-in scheme, or whatever you want to call it, last occur?

The Hon. R.I. LUCAS: If we can get a specific date, I will put it on the record in the later stage of the committee. My initial advice is that we think it is around about 2018. It was not a buyback, it was an opportunity to change the title, but there was no payment, as I understand it, to encourage people to do it. We think it is around about 2018, but it might have been early 2019—perhaps February or March 2019, rather than 2018.

The Hon. K.J. MAHER: At that time, immediately prior to the last trade-in round, how many SCs were there in South Australia?

The Hon. R.I. LUCAS: My advice is, and we may have to correct the record, we believe it was 39.

The Hon. K.J. MAHER: So, immediately before that last opportunity for SCs to trade their titles for QCs, there were 39 SCs. How many availed themselves of that opportunity?

The Hon. R.I. LUCAS: My advice is 17.

The Hon. K.J. MAHER: There were figures that were being put around for those who were supporting this bill that 17 availed themselves of it out of a possible 25. Is the government aware where the figure of 25 might have come from? I know that is what the Hon. Frank Pangallo referred to. Is the government at all aware of where this figure of 25 may have come from when those who were supporting this bill had been advocating for it?

The Hon. R.I. LUCAS: My advice is no, I am not aware, and my officer here is not aware of where 25 has come from.

The Hon. K.J. MAHER: I think the Hon. Frank Pangallo mentioned that 17 out of 25 SCs during the last round availed themselves to become QCs. Is that the figure that was—

The Hon. F. PANGALLO: I do not have my notes with me at this point but that is what the indication was.

The Hon. K.J. MAHER: We had different figures. We were told it was 39, so a minority of SCs traded in. Just so we are clear, the government has no idea how that confusion came about?

The Hon. R.I. LUCAS: I cannot help with the Leader of the Opposition's confusion. I can only share the advice I am given. The issue here is really that it is just an option, is it not? There is no compulsion. It is a question for people, if they want to retain SC they are perfectly entitled to do so—it is just the option for those who wish to. Whether it is a majority, minority or it is actually fifty-fifty is not the issue, at least from my viewpoint. The issue the government is prosecuting is that there is an option and some will choose it, and did; some decided not to choose it, and they are perfectly entitled to do that.

The Hon. K.J. MAHER: Last time it was available it was a minority of the profession who opted to do that. Am I doing my maths right? As Treasurer, you can probably correct me—I am just a mere former lawyer—17 out of 39 is a minority of barristers who wished for that.

The Hon. R.I. Lucas: I will leave you to do your own maths.

The Hon. M.C. PARNELL: I have been re-reading the submission from the Law Society and the Bar Association and one of the arguments they raise in supporting this bill makes no sense to me. I will see if the Treasurer can enlighten us. Most of the arguments are pretty obvious, they relate to self-interest and career advancement and things like that, but the curious one is that they say that this bill:

…will very likely facilitate further work, particularly from Commonwealth agencies being conducted in this State should, as we expect, female practitioners both at the independent bar and practising at the Crown, be appointed?

It then goes on to state:

As you may be aware, the Commonwealth has equitable briefing policies, compliance with which is essential to facilitating such work for the profession in South Australia.

My understanding of that is they say, 'Well, the commonwealth government wants to make sure that they equally give work to men and women lawyers.' That is what I understand when it talks about compliance with that equitable briefing policy.

Unless the commonwealth has some sort of discriminatory policy in relation to QCs, SCs and regular barristers, how is it possible that simply changing the titles in an otherwise equitable briefing environment would result in more work for South Australia? Is there some hidden bias in favour of QCs that is not published anywhere and that we are not aware of? How can there be more work for South Australian barristers simply because the letters after their name change?

The Hon. R.I. LUCAS: I am very happy to endeavour to explain the South Australian government's position. Asking me to explain the motivations or reasons the Law Society, a completely independent body from the South Australian government, has for supporting legislation I will leave to them. I understand the honourable member has had discussions with the Law Society in relation to this legislation over recent weeks. In relation to the commonwealth government, I am not familiar with their procurement policies in relation to this issue. I think it is really up to the Law Society. I know the honourable member often points us to the Law Society's submissions as justification for a particular point of view the Hon. Mr Parnell—

The Hon. M.C. Parnell: Not this time.

The Hon. R.I. LUCAS: Indeed. We all pick and choose. The Hon. Mr Parnell, I think, is a little unfair when he characterises the Law Society's submission as being essentially driven by self-interest and promotion, but nevertheless he is entitled to attack the Law Society in that particular way. I cannot explain that particular aspect or possibly even other aspects of the Law Society's submission. They are perfectly entitled to put their point of view to the Hon. Mr Parnell and, indeed, to the government and anybody else who is prepared to listen. As the Hon. Mr Parnell has just demonstrated, there will be occasions when we all either support their position or oppose their position, as we are entitled to do.

The Hon. M.C. PARNELL: I am going to rephrase my question, as I should have done in the first instance. Does the government believe that creating QCs will deliver more commonwealth-funded legal work in this state?

The Hon. R.I. LUCAS: I have no evidence and nor do my officers have any evidence to either support or oppose that particular contention. I am just not in a position to provide the honourable member with any evidence one way or other in relation to that particular issue, as much as I would love to. I am just not in a position to do so.

The Hon. F. PANGALLO: Just to clarify the issue that was raised by the honourable Leader of the Opposition in those figures, 18 of the 25 requested to go from Senior Counsel to QC. Those figures were provided to our office by the Bar Association.

The Hon. R.I. LUCAS: It might be—we do not know—that they were Bar Association members, as opposed to the numbers that the government has provided, which is a large number of 39. Maybe that explains the difference.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. K.J. MAHER: I might speak generally before moving amendments. Because there are two competing amendments that we are moving to this clause, both of which cannot exist, I might outline our view generally and outline what those amendments do. It might be of some benefit to the committee, then, to perhaps turn to the crossbench and seek their views on both of those amendments. I think that will guide us in perhaps how things are moved. That is how I intend to proceed. It is up to members how they intend to proceed, but that might provide some guidance as to how amendments are moved.

This bill seeks to allow the practice that has existed for over a decade in South Australia and for some three decades in New South Wales of only appointing well-recognised and distinguished barristers with the title Senior Counsel, and it seeks to allow the title Queen's Counsel. It is very longstanding Labor Party policy that we do not support that.

We support the postnominal Senior Counsel. We support the recognition of distinguished barristers with a postnominal and that is Senior Counsel. We made this change as a government back in, I think it was, 2007 or 2008. We have not had a change in our party policy. It remains our party policy that we support the appointment of Senior Counsel. We do not support the appointment of Queen's Counsel. The amendments that are being moved by the opposition reflect that.

There are two amendments. The first one essentially replaces the operative part of the bill that allows for anyone appointed Senior Counsel to essentially ask for a trade-in to be appointed Queen's Counsel. As I said, it is very longstanding Labor Party policy that we do not support that. We think it is anachronistic and a throwback to something that is not relevant to Australia, indeed South Australia, today. In so many ways we stand on our own two feet, separate from the monarchy of the UK, and we think it is appropriate that, like New South Wales has done for some three decades, we retain and continue with the recognition of distinguished barristers but as Senior Counsel.

Our first amendment seeks to replace the part of the bill that allows for that trade-in of Senior Counsel to Queen's Counsel, and in fact makes it clear that you cannot appoint someone who has been awarded Senior Counsel as Queen's Counsel. It says that that is not allowed, and that is consistent with longstanding Labor Party policy.

That is our preferred amendment, and we would be seeking the support of the chamber. I will be keen to hear from the crossbenchers as to their views on that. Alternatively, if that does not seem to have the favour of the council, our second competing amendment is to change one word in the bill at clause 4: a 'must' to 'may'. That is where the Attorney-General receives the request for someone who has been awarded postnominal Senior Counsel.

At the moment, under the government's bill, the Attorney-General must forward that on to the Governor for that proclamation of a Queen's Counsel. Our alternative amendment simply says 'may', so the Attorney-General is not compelled by force of this legislation to do it. It is at the Attorney-General's discretion whether or not to do it.

They are competing amendments to this section. Our preferred position as the opposition is the first one; that is, that you cannot have Queen's Counsel, it is Senior Counsel, and that is consistent with our longstanding Labor Party policy. Our other proposal, in the event that that does not have the support of the chamber, is changing the Attorney-General 'must' forward it to the Governor to 'may' forward it to the Governor. Having outlined the two amendments the opposition is putting forward, I would invite the crossbenchers to make a contribution, if they wish, as to where they are headed, and that can guide us in terms of which amendments are put forward at this committee stage.

The Hon. R.I. LUCAS: Given that the honourable member is outlining a smorgasbord of options in descending order of importance—are you are interested in this one and, if you are not interested in that one, are you interested in the other one? I am sure that, if they are not interested in those, he might even come up with a third option. Depending on the response from crossbenchers, I assume the Hon. Mr Maher will only move one of those amendments. I will outline the reasons why the government will oppose both amendments, whichever one happens to be moved.

In relation to the first amendment, which is No. 1 [Maher-1], as the Hon. Mr Maher has outlined, the government will be opposing that. The effect of this amendment is to prohibit the appointment of any Queen's or King's Counsel. The appointment of Queen's or King's Counsel is the prerogative of the Governor, and this amendment will prohibit the Governor from exercising the prerogative. Further, this amendment prohibits the Attorney or another minister from making such an appointment. These ministers do not have the power to make these appointments. Such appointments can only be made by the Governor.

The amendment further prohibits the Governor from also making this appointment. This bill was introduced to give legal practitioners who have been appointed as Senior Counsel by the Supreme Court the option of being appointed as Queen's Counsel. Many senior advocates consider the title of QC (or KC, as it may be known in the future) to be a more universally recognised title, and it gives them the flexibility of choosing that title if that is what they wish.

This is evidenced already in the government's second reading explanation on the bill, where 67 per cent of legal practitioners in South Australia voted to support the option of QC once someone has been appointed as an SC. The amendments completely undermine the purpose of the bill and are opposed. The bill is a bill of choice, and it is abundantly clear that the opposition does not agree with that freedom. The bill guarantees the appointment of SCs by the Supreme Court without political interference and ensures that those appointees who would like to be referenced as a QC can do so if they wish.

The government also opposes the second in the smorgasbord of amendments proposed by the Leader of the Opposition, which is the deletion of the word 'must' and substituting it with 'may'. The reasons for the government opposing that amendment, if that is the one moved, is that the effect of this amendment is to give the Attorney of the day a discretion as to whether to recommend to the Governor whether someone should be appointed as a Queen's or King's Counsel.

The bill currently requires that the Attorney recommend to the Governor the appointment as a Queen's or King's Counsel of any Senior Counsel who makes application to her. The Attorney-General and her staff have been very clear throughout briefings on this bill that there is absolutely no desire or intent for the Attorney to be picking and choosing who should be a QC once they are appointed as an SC: this ensures no political interference.

The recognition of senior advocates as senior counsels is a matter for the courts in accordance with its rules. The use of the word 'may' means that the Attorney could have a role in considering whether those appointments to Senior Counsel have the required qualities or are otherwise suitable to be appointed as Queen's Counsel.

Senior Counsel have already gone through a process to be appointed by the Supreme Court and have their abilities and their leadership within the profession assessed, and the Attorney has no role in undertaking any further assessment before they are appointed as Queen's Counsel. As detailed in a letter from the Law Society of South Australia to the Hon. Mr Parnell on 13 July 2020, the Law Society wholeheartedly supports the bill. Depending on which particular amendment is moved by the Leader of the Opposition, the government will be opposing either or both.

The Hon. J.A. DARLEY: For the record, I indicate that I will be opposing both amendments.

The Hon. F. PANGALLO: I acknowledge the Leader of the Opposition in indicating that it is Labor Party policy and has been for some time. I will indicate that both my colleague the Hon. Connie Bonaros, who is unfortunately ill today, and I will not be supporting either amendments. As the Treasurer has pointed out, certainly with the second amendment, it actually does raise more questions regarding political interference just by using that three-letter word 'may'. It would complicate matters even further.

I do not think we really want to get back to the situation, as I mentioned in my speech, of some years back, when David Edwardson, an eminent silk in South Australia and Australia, was initially denied the opportunity to be a QC simply because he defended outlaw motorcycle gang members. To me, that was just blatant political interference in that regard.

Lawyers have difficult jobs; QCs have difficult jobs. Their job is to defend people who go before the courts. They go before the courts as accused rapists, murderers, paedophiles—you name it. They need to go there to try to uphold justice and the law as they see it and also defend their clients so that their client receives fair justice for their accused crime. In saying this, we cannot support that second amendment, even though I see what the intent is from the Leader of the Opposition, because it will raise even more questions than it will deal with.

The Hon. M.C. PARNELL: It probably will not surprise people to know that I can count. I have a law degree, but I studied accounting as well, so I can count and I can see where the numbers lie on this. Just for the record, our position would have been to support the first of the Labor amendments and our fallback would have been to support the second amendment. I note the Attorney's comment—and I think the Hon. Frank Pangallo repeated it—that replacing the word 'must' with 'may' would allow for picking and choosing. I think that is the evil that they seek to overcome; in fact, it does not really overcome that because it just puts the picking and choosing in a different set of hands.

I would challenge what the Treasurer said. He talked about this as a bill of choice. Let's be clear: that choice will not apply to a republican government that might be elected in this state or parties whose strong views are republican. Under the government's bill, a republican state government would be forced to hand over, for acceptance by the Governor, a list of QCs or KCs, so there is no choice involved in that at all.

We will leave it to the Leader of the Opposition to determine whether, having seen the numbers, he is inclined to divide on any of the amendments that he is moving. I will just put on the record now that, regardless, the Greens do see this as an important bill. We want to make sure that the record shows exactly where people stand at the end of the committee debate, so we will be dividing on the third reading.

I want to finish my brief contribution now with a quote from a commentator in The Guardian, some six years ago, when they were reporting on the move in other states to go down the path of QCs:

…it exposes that Australian tendency to desperate insecurity, which can only be cured by blessings and baubles from the motherland.

The Hon. K.J. MAHER: I thank honourable members for their contributions. Given where the numbers lie, I think we will maintain our policy purity and move the one that is most consistent with Labor policy and most against monarchist throwback tendencies, and that is amendment No. 1 [Maher-1]. Accordingly, I move:

Amendment No 1 [Maher–1]—

Page 3, lines 4 to 19 [clause 4, inserted section 92]—Delete inserted section 92 and substitute:

92—Prohibition on appointment as Queen's Counsel etc by State government

A person may not be appointed as a Queen's Counsel or King's Counsel by the Governor or by the Attorney-General or another Minister.

The committee divided on the amendment:

Ayes 9

Noes 10

Majority 1

Amendment thus negatived; clause passed.

Schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (12:30): I move:

That this bill be now read a third time.

The Hon. M.C. PARNELL (12:30): I was not going to make a long third reading speech; however, I did offer a quote at the very last contribution I made and I did not have the information to hand, so I just wanted to put on the record that the quote I attributed to a commentator was in fact Richard Ackland writing in The Guardian on 9 October 2014, and the title of his article is 'Counsel to whom? Australian barristers run back to the Elizabethan bosom'.

The council divided on the third reading:

Ayes 18

Noes 2

Majority 16

Third reading thus carried; bill passed.