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House of Assembly - Fifty-First Parliament, Second Session (51-2)
2008-04-30 Daily Xml
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Ministerial Statement

QUEEN'S COUNSEL

The Hon. M.D. RANN (Ramsay—Premier, Minister for Economic Development, Minister for Social Inclusion, Minister for the Arts, Minister for Sustainability and Climate Change) (14:01): I seek leave to make a ministerial statement.

Leave granted.

The Hon. M.D. RANN: On Monday 21 April 2008, as acting attorney-general, I met with Chief Justice John Doyle on the issue of the procedures for the appointment of Queen's Counsel and the designation of Queen's Counsel itself. In that meeting, I reaffirmed my view to the Chief Justice that reform of the longstanding arrangements was due—in my view, overdue. Under protocols established in 1970 by the then premier, Don Dunstan, appointments to Queen's Counsel are made by the Governor in Executive Council following recommendations by the Chief Justice to the Attorney-General. The procedure does not provide for the government or the Attorney-General to vary the recommendations of the Chief Justice. In other words, cabinet, government and Executive Council simply become a rubber stamp.

The government now acts as a virtual post box. In those circumstances, I do not consider it appropriate in a modern age for the executive government to maintain an involvement in the process. The Chief Justice raised with me at our meeting a reform proposal, developed by him and a committee of the Supreme Court judges, that did not involve appointment by the executive government.

The Chief Justice presented to me, as acting attorney-general, a proposal for a new appointment process that would not involve the executive government. Instead, it is proposed that appointments would be made by the Chief Justice after consulting the Attorney-General, the Solicitor-General, the judges, the Law Society and the legal profession. Future appointees would no longer be called Queen's Counsel and, instead, the designation of Senior Counsel would apply—no longer QC, from now on SC. The process would be set out in a new practice direction to replace Practice Direction 12.

The Chief Justice gave me a detailed draft of the proposed practice direction. He also advised that the adoption of the new practice direction is within the current powers of the court. No new regulation or legislation is proposed. The government fully endorses the Chief Justice's proposal.

The government will recommend to the Governor that the existing regulation underpinning the current arrangements be revoked, upon which the Chief Justice will issue the new practice direction establishing the revised arrangements. It is anticipated that the new arrangements will come into effect as soon as practicable and all future applications for appointment to Senior Counsel will be considered under these arrangements. In other words, the QCs will not be appointed by the government in theory: they will be appointed by the Chief Justice.

The Chief Justice does not propose to change the present rule that the title is limited to persons practising as barristers and cannot be used by members of law firms. The Chief Justice's proposal addresses the government's concerns. The title of Queen's Counsel would not be conferred in future. All new appointees would be called Senior Counsel. The proposal provides that those Queen's Counsel who prefer in future to be known as Senior Counsel, that is, existing QCs, may do so by resigning as Queen's Counsel and adopting the title of Senior Counsel instead. Somehow I doubt whether there will be a long queue wanting to change their title. A person's place in the order of precedence will not be affected by doing so. Those Queen's Counsel who wish to retain their present title are free to do so.

Importantly, the proposal from the Chief Justice also provides—and this is the critical point in terms of the government's concerns about the past—that any pending disciplinary matters must be disclosed, as must any other fact that might disqualify the person from appointment as senior counsel. Further, the Chief Justice proposes that the appointment may be revoked by the Chief Justice if the court, the Legal Practitioners Disciplinary Tribunal or the Legal Practitioners Conduct Board finds the person to be guilty of conduct that, in the opinion of the Chief Justice, is incompatible with the office of senior counsel. Further, the Chief Justice can revoke the appointment if he considers that the person has acted or practised in a manner incompatible with the office of senior counsel or that the person is otherwise unfit to hold the office.

Before exercising his power, the Chief Justice would give the person affected an opportunity to show cause why the appointment should not be revoked. The Chief Justice also plans to widen the range of persons consulted on the appointments, and to change the consultation process. In addition to persons who are now consulted, the Chief Justice proposes to consult the Chief Magistrate, the Supreme Court Masters, the senior resident member of the Administrative Appeals Tribunal, the Solicitor-General, and the president of the Women Lawyers' Association. Consultation will take the form of group meetings: first, with a group consisting of the Attorney-General, the Solicitor-General, the president of the Law Society, the president of the Bar Association, and the president of the Women Lawyers' Association (or their nominees), and then with a group representing the judiciary. In addition, the judges and masters of the Supreme Court will be entitled to comment, and the Chief Justice will meet with those who do.

The Chief Justice also proposes that a person who applies unsuccessfully for appointment should be entitled to request a meeting with the Chief Justice to discuss the reasons. I do not expect that either the Attorney-General or, indeed, the shadow Attorney-General is likely to be appointed as senior counsel.

South Australia is the last state to use the term 'Queen's Counsel'. The new arrangements will bring South Australia into line with all other states, where the term 'senior counsel' has been adopted. I am advised that the appointment procedures are consistent with other states, all of which do not now involve executive government in the appointment process.

In my view, the proposed new system addresses the government's concerns about the present system—and I had serious concerns about the present system as it applied a year or so ago. In particular, it improves consumer protection by ensuring that disciplinary matters are disclosed and that a person who is unfit to hold the office will lose it. It also improves transparency, both in that consultations will be conducted in groups, and in that disappointed applicants can seek a meeting with the Chief Justice to discuss the matter.

In conclusion, I congratulate the Chief Justice of South Australia, the Hon. John Doyle AC, for his proposal, which the government supports unanimously.

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