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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Bills

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

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:09): In response to the contribution to the debate on this bill, I indicate my appreciation to the opposition and crossbench members, and indeed our own member for Heysen, and expand on the importance of this legislation. There are some comments that have been made during the course of the debate that do need some response.

Secondly, I have to hand a letter I have provided to the opposition and to the crossbench from the Chief Justice dated 29 April 2020. Although I have weekly correspondence with the Chief Justice, on this issue there has been a significant amount of correspondence, but he specifically requested that I advise the parliament of this letter and its contents. I confirm that a copy of it was provided to the opposition earlier this month. I will read the letter dated 29 April 2020. It states:

Dear Attorney-General

Legal Practitioners (Senior and Queen's Counsel) Amendment Bill 2020 (SA)

The Judges considered our recent correspondence on the above matter at the Judges' Meeting held on 27 April 2020.

The Judges affirmed that there is no agreement between the South Australian Bar Association and the Judges that the proposed Bill should be enacted. To the contrary, the Judges do not support the Bill. The position of the Judges continues to be that the appointment of Senior Counsel should be resumed in accordance with the arrangements made between the Executive and this Court in 2008 (the 2008 arrangement). That arrangement was that the Executive would cease the practice of appointing Queen's Counsel on this Court making Rules establishing a comprehensive process for the appointment of Senior Counsel. The Court made rules to that effect (the Chapter 12 Rules), which continued in effect until the practice of appointing Queen's Counsel resumed in 2019.

The Judges would resume their practice of appointing Senior Counsel if the 2008 arrangement were reinstated. Of course, if, not withstanding the Judges' view, the Parliament were to enact legislation to the effect of the Bill, the Judges would not frustrate its operation, and would again appoint Senior Counsel substantially in accordance with Chapter 12.

I thank you for the permission you gave me to speak to the Shadow Attorney-General and the independent Members of Parliament to put the Judges' position. However, on reflection I am concerned that the nature and purpose of a person-to-person meeting between me and members of Parliament might be misunderstood. Accordingly, I, and the Judges, would prefer you to simply disclose this letter to them and subsequently confirm to me that you have done so.

Yours sincerely

The Honourable Chris Kourakis

Chief Justice of South Australia

Whilst the correspondence has been provided—and I confirm in the parliament that that has occurred and I have advised the Chief Justice that that has occurred—it is fair to say that there has been a significant amount of correspondence on these matters. However, consistent with that undertaking, I have read into transcript what has been said.

I do need to explain that, although the Chief Justice thanks me for giving him permission to speak to the shadow attorney-general, I made it very clear to the parliament and to the Chief Justice that he does not require my permission and that he is perfectly entitled to do so. He has chosen, according to this correspondence, not to do so. I am not sure why he would think a meeting with the shadow attorney-general or other members of parliament might be misunderstood, but that is a matter for him and them. Nevertheless, I respect the fact that his position is clear.

Therefore, when the member for Florey raised a number of issues arising out of correspondence from 2018, I had wondered whether she was privy to the circumstances that have occurred over the last few years. I do feel compelled to advise the house of a number of things that have occurred.

In the letter of 2 October 2018, which has been read out by the member for Florey—that was a letter of the Chief Justice in relation to the South Australian Bar Association's proposal for the appointment of Queen's Counsel—a number of issues were raised and a number of things have occurred since. However, if the only information the member for Florey had was that letter, it is reasonable that she inquire into some of the matters that were raised, including the question of constitutionality.

To refresh your memory in relation to this—and I am not going to go back over the past 400 years—from 2008, there was a new regime, if I can describe it as that, as to how persons would be appointed as Senior Counsel. It was at a time when the South Australian Bar Association had indicated their support for the abolition of the descriptor 'Queen's Counsel' and they had consulted on the matter.

On 30 April 2008, the then premier, who was also acting attorney-general, announced that he had met with chief justice John Doyle and discussed the issues and procedures of the appointment of Queen's Counsel and the designation of Queen's Counsel itself. He explained in his ministerial statement at the time the development of the use of the procedures and the format that was provided in the appointment of Queen's Counsel.

In fact, he went so far as to suggest that the regime that operated under regulation at that time was one in which the government had become a post box. For the education of members, there had been a regulation in relation to Queen's Counsel, effective back on 26 March 1970, which made regulations to indicate that:

1. No practitioner of the Supreme Court shall be appointed Her Majesty's Counsel except after consultation of the views of the judges of the Supreme Court as communicated by the Chief Justice to the Governor in Executive Council and with the approval of the Chief Justice.

I assume that is what the then premier meant when he said, 'We've just become a post box as the government of the day,' in that these appointments are made conditional upon having the blessing of the Chief Justice. Discussions ensued and the premier announced that there would be a revocation of the regulations to which I have referred—at that stage, by Queen's Counsel regulations 2008 of the regulations I referred to—namely, made on 26 March 1970.

Thereafter, the chief justice, through his own arrangements by rules of his court, would undertake a process of the appointment of Senior Counsel and all new appointees would be Senior Counsel. That is the parameter in which we had come in 400 years, from having the personal counsel of Her Majesty or His Majesty, to a system where there had been appointment of Queen's Counsel, to thereafter be described as Senior Counsel.

There was no reference to this in the parliament to the extent of a legislative endorsement of this new arrangement. This was an arrangement between the then premier, as acting attorney-general, and the then chief justice. It was of some moment, I recall, when the Attorney-General of the day returned—then attorney-general Atkinson—to find this had been performed.

In any event, the important thing was that it occurred and I, for one, as a member of the profession, did not have any major issue with that. It was consistent with the time. It was a situation where—

Mr Picton: You were a member of parliament.

The Hon. V.A. CHAPMAN: It was consistent with the time and, secondly, it resolved an issue between the bench and the bar as to how things would progress. Furthermore, I was a known member of the advocacy for the establishment of a republic. All those things were very clear. I do not have any personal axe to grind in relation to that occurring, but I do make the point that it occurred. After hundreds of years of practice, the regulations were simply revoked by the cabinet of the day and an announcement made by the then premier as acting attorney-general. That is what occurred.

For all the reasons I set out in the second reading explanation in support of this legislation, and the culmination of submissions being put by the SA Bar Association, the Law Association, and the Chief Justice on behalf of the judges on this matter as, I think, the most significant stakeholders in relation to it, there have been a number of developments that I now feel I need to put on the record because the early descriptor of this new proposal by the Bar Association to consider a process to enable the appointment of Queen's Counsel needs to be in that context. I think it has been left open with a reasonable query, having had that referred, as to whether the Crown's prerogative to appoint a Queen's Counsel had been abrogated.

Another thing I need to say at this point is that the new regime since 2008—which I suppose was consistent with the progress of this development—had moved to an area where the Chief Justice, via a set of rules that were colloquially called chapter 12 rules, set out the procedure by which people could apply for consideration for Senior Counsel. Consultation was to take place and, ultimately, a consideration by the panel convened, including the Chief Justice, for recommendation of Senior Counsel appointment. That was a process under the rules of the Supreme Court.

So we had moved away from the executive making the decision—presumably 400 years ago the king or queen just picking their own counsel—through a cabinet process to ultimately the most senior judges in the state court making the determination, doing the assessment and selection of those they recognised as being worthy of the title of Senior Counsel. I think that was a fairly natural progression.

I want to highlight here that the Chief Justice, in this recent correspondence, is again confirming his reinstatement of that process, the chapter 12, to facilitate the ongoing selection and appointment of Senior Counsel; that is, there will be a process where, in short, once a year people make an application and that process is undertaken. A number of people will be consulted, including the Attorney-General, as well as a number of other office bearers whose the advice the panel will appreciate, because it is different people who see counsel, as barristers, in action.

It is not just judges they appear before; it might be the DPP (Director of Public Prosecutions) and the current DPP is a Senior Counsel, and often they are a very senior counsel themselves. I interrupt myself to say here that the member for Florey says that she would be surprised if any of her people in her electorate might come across or have the need of a Senior Counsel themselves. If they were being prosecuted with a serious offence, more than likely they would be prosecuted by a Senior Counsel or Queen's Counsel.

Mr Picton: No-one in her electorate would be prosecuted for a serious offence.

The Hon. V.A. CHAPMAN: Well, no, she raised the example.

Ms Bedford: They couldn't afford it without legal aid. That was the basis of the whole thing.

The Hon. V.A. CHAPMAN: Yes. It may well be that there is a basis upon which people in her electorate may be in need of the services of a Senior Counsel, and it may not be a criminal matter but if it is they are more than likely being prosecuted by someone who is a Senior Counsel. So, yes, they do have an imprint on a number of people for different reasons. They argue cases and they are a significant player in the whole legal justice system which makes determinations, which is the body of work in our common law and which affects all of our lives.

Be under no illusion that these are the best and brightest and we have a process which recognises their seniority, which brings with it some special rules as to the incapacity or limitations in being able to reject a brief, for example, once you accept this area of responsibility. In any event, just in relation to process, I highlight the fact that the correspondence I have just read out confirms that, if the parliament passes this legislation, chapter 12 is proposed to be reinstated as I have indicated, and that is as it should be. I just highlight this because, first of all, it is the senior members of the judiciary who are the ones who review the performance of these people.

They are totally responsible for the admission of legal practitioners, and they have a role in the dismissal of them from practice if, through certain other processes, it comes to their attention that there has been some misconduct on their part. They have very significant input into not so much the discipline but the ultimate sanction of striking off a practitioner, and they also are responsible for their admission in the first place.

There are a few other bodies along the way that the practitioners might become involved with, but also the Chief Justice chairs a council that is responsible for the education complement for legal training. In a very comprehensive way, the senior members of the Supreme Court have a role and are in a very good position to be able to make a decision about who is worthy and meritorious of receiving that honour.

Therefore, it is also important that I say that the purpose of this bill is not in any way to interfere with that selection process. The purpose of this bill is specifically to amend the Legal Practitioners Act so that if any one of those meritorious, worthy recipients of a Senior Counsel elect themselves to want to become Queen's Counsel—some would say it is to value add it, some would say that it is not necessary for them—then they can present that request to the Attorney-General and the Attorney-General is obliged to then present that to the Governor.

Why is it necessary to oblige them to do that? I say to this parliament that it is very important that this is a decision of the recipient of the recognition, not a matter for the Attorney-General to have a veto over whether that person should or should not have it. I have said this before and I will say it again: if the former member for Enfield, John Rau SC, were to present a request for that under this legislation, as attorney-general he would be entitled to have that submitted to the Governor, and he may do that.

An honourable member: Well, he didn't. He wasn't one of the 17, was he?

The Hon. V.A. CHAPMAN: Well, the chapter 12 rules are now no longer in existence but, as the Chief Justice has said, he is prepared to reinstate those on the passage of this bill. What has been outlined in the letter of 2018 raises some questions that were raised specifically by the Chief Justice. I am not going to go through all of them, but I think it is important, obviously, in responding to the member for Florey's concerns.

Firstly, on the question of prerogative power, the Chief Justice outlines his concern as to whether the prerogative power has been abrogated. That is a matter which, since that letter, has been the subject of referral to the Solicitor-General. That position is such, on the advice that we have, that that power would not be abrogated. There are a number of other counsel who purported to espouse that position, and that is fine, but from the point of view of there being an independent assessor of that the Solicitor-General has looked at it. I think it is reasonable that, having raised it, we need to clarify it, and that information has all been conveyed to the Chief Justice.

The other matters that are raised largely flow from that, but one of the matters that is raised is whether a proposal was to include that the attorney-general, himself or herself, would personally assess applicants for Queen's Counsel. I hope I have made it completely clear—I have to the Chief Justice—that that is no desire whatsoever on my part or that of the government, that that is a matter quite properly done under the chapter 12 rules of the court and that he and his colleagues are well placed to continue in that role. That assessment would resume under his determination. His descriptor in here about political silks not only is inconsistent with the bill I am putting to the parliament but is simply not applicable. That is not the purpose of this legislation and in no way interferes with that process.

The information we have received has been conveyed to the Chief Justice, as I have said. My understanding after that is that there have been continued discussions between the Chief Justice and the SA Bar Association and, subsequently, the Law Society. Again, I will not repeat the detail, but essentially they came into the picture, they conducted a survey of their members and they have presented a submission to support the reinstatement of Queen's Counsel for all the reasons that have been outlined.

Next came the question of whether there could be a model established, too, which was both enforceable and appropriate, to sit in addition to chapter 12 rules. The indication was that, as the previous government had simply revoked rules, that seemed to be the logical thing to do—that is, simply to reinstate the regulation. That process was the subject of a request to me as Attorney-General, as to whether that regulation process would be sufficient—that is, under the Legal Practitioners Act—to have a regulation.

That process, I point out to the member for Florey, was presented to the Solicitor-General after both parties had indicated that that is a reasonable thing to look at, and I did so. That confirmed that there was an issue about whether the Legal Practitioners Act had sufficient power to make the regulations. Accordingly, I was requested to look at whether there was need for a legislative remedy if we were going to have a process that would enable a Senior Counsel, at the election of the applicant barrister, to be converted to a Queen's Counsel. That is precisely what we did.

Obviously, some time has elapsed, but that process has been undertaken. At all times, the Chief Justice has been kept informed of the legal opinion received and provided with a copy of this bill that is before the parliament for his consideration. As you can see, it is a fairly short bill, but it essentially allows there to be a process under the Legal Practitioners Act by regulation to make that process be complete, if that is the will of the parliament.

There are two important elements before us. Firstly, there is an indication from the Chief Justice that, although he would prefer to just go back to the 2008 act and just maintain Senior Counsel, if the parliament does pass this he will reinstate the chapter 12 rules for the purposes of that assessment being undertaken. There will be no interference by executive as to that process. It has been a good process that for the last 12 years or so has been an important advance in the 21st century in how we do that. Secondly, there will be no capacity for an existing Attorney-General to pick or choose whom he or she would present upon an application coming from a barrister for consideration.

The member for Florey has raised the significance of the cooperation between either the judiciary and the executive, or indeed the judiciary and the bar, the barristers, who I suppose are a subset of solicitors and barristers, the legal practitioners we have in South Australia. We are a fused profession, but we have the right to be able to be an independent bar.

I have regular meetings and communication correspondence with the Chief Justice, and I have received his advice on an enormous number of matters. I have received requests that he considers need to be pursued, whether it is the appointment of auxiliary judges across to law reform. I value that advice. Apart from a couple of exceptions, I have taken that advice—and members are aware that the appointment of a separate appeal court was not with the Chief Justice's blessing, as I think it was described—but I want to say to the member for Florey and the parliament that I respect the Chief Justice. I respect his role in the judicial hierarchy: he is the chairman of the judicial council and he is in a very significant judicial position in this state.

Sure, we have federal courts over here, but he is the highest person in charge of the highest level of counsel for the judiciary in this state. Even if a magistrate is appointed, he needs to be consulted, as it should be, so it is important that he has a good working relationship with the Attorney of the day. I think we do have a good working relationship. I respect his position. I think he respects mine, but we have a difference of view on some things. If I were to give it an estimate I would say 95 per cent plus I agree with him. In fact, I am continuing to work with him on areas of law reform which are quite innovative and which I will present to cabinet and parliament in due course. That is very important.

Secondly, if the parliament needs some demonstration of that, the fact that the law to establish the first appeal court in South Australia has passed the parliament and is now being activated ought to be some testament to that proposition; that is, we have an active working relationship. In fact, during COVID-19, notwithstanding the Chief Justice's view in relation to whether or not we needed to have a separate appeal court, he, the Courts Administration Authority and I worked to develop not only the appointment of two of those judges but also their accommodation and, of course, the submissions I need to go to the Treasurer to make sure that we have upgrade of accommodation for them.

These are all practical day-to-day things that we continue to work with. I want to compliment the Chief Justice on his support of advancing those measures necessary for the implementation of that, and I thank him for his continued advice on it. I say this to the parliament because it is within the envelope of a circumstance where it was clear that the Chief Justice had one view and the government of the day had a different view.

One of the things you learn in the legal world is that you can stand up and have a discussion about something, and you can put your argument and a submission, and it may be entirely different from that of the person standing next to you. Whether that is in a party room or in a cabinet or in a courtroom, these are the things that happen in our life now in the political world and in the government world. You have to be able to present those and not take personal offence if you do not get your own way.

If I took personal offence now in my political world every time I did not convince my colleagues of something, I would be in a mass of tears and probably need treatment. That is the reality of political life. Similarly, in a courtroom and in dealing with legal matters, you win some and you lose some. That is the art of the advocacy that is necessary: it is a discipline that is necessary to appreciate that this is not a personality clash and that this is not a fight with somebody because they have a different view.

It does get a bit complicated in politics because personal statements are made that would never be allowed in a courtroom, but that is just something you have to deal with in the rough-and-tumble of politics. Again, I suppose if you cannot cut it, you find another profession, calling or whatever. The reality is that is something I suppose I have had 40 years' experience of, and the last 18 have been a little bit rougher than in the courtroom, I have to say, because personal statements can be made and they can be hurtful.

One of the disciplines one learns as counsel is that it is the responsibility of the barrister of the day to put their client's case forward, to accept the instructions of the instructing solicitor, to put the best case for the client and to successfully negotiate matters as best they can for the client if it does not proceed to litigation. That is the responsibility. There is obviously a responsibility of the barristers to the court, as well, and I want to touch briefly on that.

Apart from executive government and heads of a third arm of the trilogy—that is, the parliament, the executive and the judiciary—we have a doctrine of separation of powers, and we have to try to get on and we have to try to make that work. Part of the reason we have it is to make sure that not one group has too much power. That is exactly why we have it.

One of the aspects of the judiciary, and the strength of that unit in the trilogy, is the fact that they have the bar in partnership with the judiciary to do a number of things: firstly, to strengthen the independence of the judicial arm and, secondly, to ensure that the protection is there for the client and the court. Lawyers are admitted and have a profession, but they actually have a duty to the court. and this is something that the member for Heysen is very familiar with.

I had 20 years in those courts and I have had 18 years here, and sometimes, you just think to yourself of the experience that comes with that. The very fundamental difference for barristers is that they actually have a duty to the court: they cannot mislead the court and they cannot just select out bits of common law case law and think, 'Well, I'm going to just tell a judge about this case. I know about this one over here, so I will just keep that secret.'

These are the sorts of rules that barristers have to comply with because of that overriding duty to the court. The relationship between the bar and the judiciary, particularly the leadership in the judiciary, is very important. That is the strength of the judiciary as the independent arbiter and the protector of the individual and the community against excessive executive government or unlawful parliamentary determinations. They have a very important role, and the bar and the leadership need to have a strong relationship.

That is why through all this process, which has taken a little while, I have made public statements as Attorney-General that it is important that the bar and the leadership in the judiciary keep their relationship strong to ensure that that actually occurs. The barristers, through the SA Bar Association and also generally, need to have a good working relationship with the Chief Justice, the Chief Judge, the Chief Magistrate, the head of the Youth Court and obviously a number of other courts and tribunals in South Australia, as they are the hierarchy in our civil and criminal law and have a large chunk of responsibility.

I make the point that it has been very important to me as Attorney-General that I try to assist the bar and the Chief Justice, on behalf of the judges, to work through something that is both respectful of the judiciary in the appointment process of Senior Counsel but, in addition to that, accommodates what has been a unified position of the bar and the Law Society. One might ask the question: what has this got to do with the Law Society? They look after the solicitors, largely, and the ones who practise as a solicitor and counsel but who do not want to go to the independent bar. I suppose they could have stayed out of it. They could have said, 'This is the barristers' fight with the Chief Justice. We will let them deal with it.'

They actually surveyed their membership, who are largely solicitors in firms, some of whom still do court work because, as I say, in South Australia it is a uniquely fused profession that allows them to do that. They had a massive response. Again, I have referred to this in the submissions I have previously put. They came in and said, 'No, we do need to understand the commercial reality. We have looked at how we might best address this to make sure our Senior Counsel in South Australia are recognised and have a competitive edge to be able to compete with New South Wales and, at the very least, be in the same model as Victoria.'

Mr Picton: They don't have QCs.

The Hon. V.A. CHAPMAN: The member for Kaurna shouts out, 'They haven't moved to QCs.' Arguably, they do not need to. Just have a look at how many people have been appointed to the High Court from South Australia—zero. How many people have been appointed from New South Wales? Most of them. As I said to the parliament at the time in relation to the appeal court process, I will work with those in our judiciary and at the bar to ensure that we are a competitive legal profession and that the state has the services of the best, that they are recognised and that we have an appellate process that will be the envy of all.

I hope one day, as I have said before, when the federal Attorney-General contacts me or any of my successors and we say that we have a person from South Australia to sit on the High Court, they listen. I will continue to fight for that because we are a significant player in the federation. For goodness sake, it was mostly South Australians who wrote the federal constitution and spearheaded the committee that established it. We have an opportunity to make sure that our best and brightest have that opportunity for appointment and elevation to the highest court in the country.

For me, it is very important in this process, as a member of executive government and as Attorney-General—even though we have this unique role as Attorney-General and a member of the executive, we are also the first law officer of the state—we have a responsibility (I hope I have outlined this for the parliament) to ensure that the relationship between the bar and the bench is strong. I will continue to fight for that because I think it is a necessary element of ensuring that we have that separation of powers and that we have that balance maintained.

On the issue of an assurance the member for Florey has sought of a continued working relationship with the Chief Justice, I indicate I am committed to that, and I hope I have outlined that to her satisfaction. I think we have a workable working relationship. I think we have demonstrated that when we have had a different view about a policy matter but which we had advanced. I respect the Chief Justice's indication to this parliament, which he has put in writing, that he will undertake a resumption of the chapter 12 rules, which gives him a continued role of course as the head of the panel in the appointment of future counsel, and I thank him in advance for that.

The reason I particularly do that is because it is a lot of work: all the work in relation to admission of new practitioners; giving them encouragement and advice; striking them off if he has to, or one of his colleagues has to deal with that; making a time to consider the contribution and the curriculum of legal study for the purpose of ensuring that we have the advance of a profession that can competently and professionally provide advice to South Australians; and work around the country and the world to provide those services.

We are in an international community now and our legal profession at the highest level needs to be able to operate in Singapore, in Hong Kong, in London—mostly in other commonwealth countries, and I will not go into the reasons for all of that. We do not practise in the United States because they have some weird system about how they operate over there in their justice process, but we are a common law country and it is very important that we maintain that.

I give an assurance to the member for Florey that that relationship is continuing to operate. I am pleased to say that I have regular reports from the CAA and the Chief Justice on the progress of the ECMS installation; the completion (hooray!) of the higher courts development, and I have been down to inspect those and we have had those discussions; and, of course, the provision of amenities for new judges.

Also, importantly, extra AVL services were necessary during COVID, and I have worked with the council and the Courts Administration Authority to make sure that we improve the lot of the courts, the police and the prisons to make sure that we can maintain, initially for the COVID, and also the long-term benefit in electronic transfer of data and information.

It continues to work, and I think that with the passage of this bill there will come about a process which the Chief Justice will complement with the restoration of the chapter 12, which he has indicated he will do. He has had full view and contribution to the advice that has been provided by the Solicitor-General on both questions of prerogative power, constitutional challenge and the question of the format, whether it be regulation or legislation.

I thank him for his indication of his position on the matter, although it is different to what the Bar Association had sought or started with, but it is a model which I suggest the parliament will be able to allow for both the continued selection and appointment of the best people by the judges who know how best to do this, without interference of executive, with an optional provision for the Queen's Counsel appointment with a submission that is presented to the Governor, which is only triggered by the application of counsel who want it. I hope that that process will enable a strengthening of that relationship between the bar and the bench. It is critical to the integrity of that third arm of power and, with this issue resolved, I think that will aid significantly.

Can I say this: at present, there are no chapter 12 rules. There is no provision in South Australia for a senior barrister to apply for recognition as Senior Counsel at all. The rules have been withdrawn from operation, and the revocation of that by the Supreme Court is obviously a matter for them. At the moment, since late 2018, we have not had any appointments of Senior Counsel because there has not been a process to deal with them.

In New South Wales, the Bar Association themselves actually take responsibility for that. I do not think that is a suitable model. I think the Victorian model, which has been developed and progressed by the Labor Party in Victoria, is actually the best model, and that is why it is modelled on that basis. It keeps the assessment separate from the presentation of appointment and that is why we are progressing it.

We have a situation in South Australia where, firstly, meritorious, experienced and competent counsel have no home-grown process upon which to advance. This is another issue that will be resolved with the passage of this legislation. I think it is pretty clear that not everyone is happy, but it will assist in that regard. What happens if the member for Heysen, competent and eminent as he has been as counsel, needs to have recognition? What can he do?

He could go to Victoria, as our counsel are able to practise in other jurisdictions. He could undertake work in Victoria, for example. He may not be able to be the member for Heysen and we do not want to lose him as the member for Heysen but, if he did that, he would have to go to Victoria and he could get the attention of the Supreme Court Chief Justice in Victoria. They might think, 'He is a stunning counsel. I am going to recommend that he be appointed as Senior Counsel here in Victoria.'

If that occurs, he then goes to the Attorney-General in Victoria and he asks him or her—it is a her at the moment—to present his appointment as Queen's Counsel to the Governor of Victoria. All that could happen under the Victorian law. Here is the incredible thing—

Members interjecting:

The DEPUTY SPEAKER: Order!

The Hon. V.A. CHAPMAN: —under the rules in relation to Queen's Counsel of other jurisdictions, our own Supreme Court has to recognise them. So he goes to Victoria, he gets his appointment and when he comes back—

Members interjecting:

The Hon. V.A. CHAPMAN: Well, who would want to go Victoria right at the moment?

The DEPUTY SPEAKER: The member for Florey and the member for Kaurna are called to order. The Attorney will be heard in silence.

The Hon. V.A. CHAPMAN: When he comes back, he will have two weeks in quarantine, but he will come back. When he appears in the Supreme Court here his postnominal of QC has to be recognised. This is the bizarre thing about what we have ended up with.

As Attorney-General, I am concerned about the state of the relationship that could deteriorate if we do not resolve this issue. I am very concerned for the future of the profession in South Australia, that they should have the same opportunity as others have had and that they should not have to go through other options for that to be achieved. There are a number in South Australia who already practise across the borders—they do it very well and some are already Senior Counsel and Queen's Counsel—but there are others who have work they do interstate and they do come to the attention of the hierarchy in those states. They are the lucky ones.

However, for those who are working away here, they might have had 15 or 20 years in practice, they have been at the bar and they are doing very well, but they have no process to deal with this. I think that is something that needs to be remedied and I am confident that the Chief Justice also wants to make sure that we get some resolution on this.

There can be different views about how these processes occurred and they do not always agree, but the key is to make sure that we give that next generation a chance, and that we do so in a manner which does not in any way fracture that extremely important relationship between the bar and the bench. I hope that gives the member for Florey some reassurance regarding the situation here.

I know members have been approached by practitioners, who are ultimately either in representative roles as stakeholders within the Bar Association or are in the profession generally, to seek members' support for the passage of this legislation. It is not for me. It is not for John Rau. It is not for the Chief Justice. It is not for any particular individual. It is for the future of a strong relationship between the bar and the bench and the future of our generations of counsel, who are deserving of consideration and recognition. We must deal with this. For that reason, as Attorney-General, I have had the bill prepared. Everyone has had a look at it. The wording and process is accepted as necessary.

I hope this answers the member for Florey's question on why we are doing this through this process of legislation, as distinct from just putting in regulation, or me issuing a ministerial statement like the previous acting attorney-general Mike Rann did. We are advised that it cannot be done this way. We have matured the process and we have to rely on the advice we receive on these matters, so we are here.

Even though people might say that this only affects a small group of people in South Australia, I personally think it is an important issue and one in which the parliament should have a say. I ask for the parliament's endorsement of this legislation and I commend the bill to the second reading.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr PICTON: I thank the Attorney. She almost hit the hour mark in her summing up speech; she will have to try better next time. The Attorney painted a rosy view of the current state of affairs between the executive government and the judiciary. I think those with a less rosy view would say that they have been at loggerheads on a significant number of issues.

The Attorney is basically implying that there is some sort of coincidence or magical happening in which the chapter 12 rules were suspended. Of course, that happened because of the deterioration of the understanding and working relationship between the judiciary and the Attorney-General over what she has been trying to do in relation to QCs.

I note that the Attorney-General a number of times in her speech said that there had been significant correspondence between herself and the Supreme Court and the Chief Justice of the Supreme Court. We have two letters before the parliament: one has been provided recently and was read out, I believe by the member for Florey and also by the Attorney herself, dated 29 April 2020 from the Hon. Chris Kourakis.

Ms Bedford: I didn't read that one.

Mr PICTON: The member for Florey did not read that one; I stand corrected. I believe the Attorney did read this letter. We also have a previous letter from 2 October 2018, which I believe the member for Florey did read, which outlines, across four pages, very significant concerns the Supreme Court, and judges of the Supreme Court as a whole, had regarding the Attorney's proposition in relation to Queen's Counsel at that stage, as well as raising significant areas of constitutional concern they had.

Given that the Attorney said there had been a significant amount of correspondence, can she outline whether there are other letters apart from those two letters that the parliament has in its possession? What are those other letters? How many letters has she written to them and how many has she received? Are there emails or is there other correspondence, and what is the quantum of that?

The Hon. V.A. CHAPMAN: I am happy to go back and count them, but there have been a number. Some of that is correspondence between the Chief Justice and me and some are copies of correspondence that they or the Bar Association have sent me in respect of their correspondence—and of course there is back and forth with the Solicitor-General. That is the general correspondence I am referring to.

I had a request by the Chief Justice to present his letter of 29 April to the opposition and make it available to members of parliament, and only that letter. I am happy to recognise that. I think I explained that the request had come to me to give permission to meet with the other members of parliament. As I have indicated to this parliament, I do not consider that the Chief Justice needed my permission—and I told him so—but he elected, for the reasons outlined in that letter (and they are his reasons, not mine) that his letter be made available. I have honoured that commitment.

Generally, I do not make available his submissions or correspondence in relation to other matters—he knows this—and I am not about to start. That is a convention that has continued, and it would only be strictly with his permission that I provide that. The member has been a member of cabinet and he would understand the importance of that.

Of course it is still open for the member, or the Leader of the Opposition or the shadow attorney-general or indeed any crossbench member—I suppose any member of the parliament, really—to request a conversation or a meeting with the Chief Justice, and that is a matter for him entirely. As the member knows, from time to time the Chief Justice has been asked to come down to provide committee evidence and so on.

I just want to make it absolutely clear that there is no impediment on my part for there to be some restriction in relation to the Chief Justice's view to the parliament in the considerations you make. I make that absolutely clear, and I can really only leave it at that. The letter of the 29th has been provided, and I think that sets out his position very clearly: prefer 2008, will reinstate chapter 12 if the legislation passes the parliament and, 'I want this provided to the members of parliament for their consideration.' In my view, I have done that.

Mr PICTON: Clearly, as the Attorney says, we have had a significant amount of correspondence between herself and the Supreme Court and the Chief Justice of the Supreme Court in this regard. There has obviously been work done by her office on this, there has been work done by her department, there has been work done by parliamentary counsel, and she stated there has been work done by the Solicitor-General as well. Could the Attorney outline the quantum of government resources that has been devoted to this task over the past two years? How many hours of staff time have been devoted to this? Have any outside counsel been engaged to work on this matter, or has it been within those agencies, as I have outlined?

The Hon. V.A. CHAPMAN: I cannot possibly give an assessment of the number of hours that have been spent by people on this. This was presented to the government by the Bar Association as a proposal back in 2018. I have given it some thought. I have obviously asked them to discuss the matter with the Chief Justice because he is the head of the judiciary. Those conversations have happened.

There has been correspondence back and forth between them. As Attorney-General, I have assisted where I can to identify processes as I saw them progressing various positions, if I can put it that way. At the request of the relevant parties, I was happy to have the Solicitor-General's advice on what the structure should be if it were to occur. I have assented to that, and I have provided that information to the Chief Justice for his consideration, along with a copy of the bill.

I do not know how I can facilitate any more, but I think that when there is an issue out there that needs to be considered then obviously, as Attorney-General, to the bar and the bench and the people of South Australia I have a responsibility not only to look at the matter, which I am asked to do, but also to facilitate their request in accommodating their progression of discussions on it. This is not a position that has been developed and imposed by the executive of this new government. It is—

Mr Picton: You're bringing it in.

The Hon. V.A. CHAPMAN: Well, I am just saying to you that it is not something that has been developed and imposed by this government. It has been, over a period of two years, the accommodation and the provision of support to the advance of the—I would not say resolution, I think it is far from that—process that has occurred, and in that regard, for the reasons I have pointed out, that is where we have got to and I have been happy to assist.

Mr PICTON: I think that is the first time I have heard of a minister bringing a bill to the house but saying that it is not actually them who is bringing it to the house, that it is not the executive that is doing it, that it is not us, that we are being pushed into this by somebody else. It is a very bizarre situation.

I would like to touch on the constitutionality of this bill. Clearly, concerns were raised in the October 2018 letter to the Attorney from the Chief Justice of the Supreme Court that potentially bringing back the Queen's Counsel, or King's Counsel as it may be, could be unconstitutional. Of course, I am not as learned as the member for Heysen, but my understanding from reading what the Supreme Court is saying is that that touches upon whether the executive—by having a Queen's Counsel and going back to the letters patent, etc.—is therefore interfering in the independence of the judiciary.

That is not something that is touched on in the later letter from this year from the Chief Justice of the Supreme Court. I know that the Attorney in her summing up said she has received advice from the Solicitor-General saying that they believe that the constitutionality of this is sound. Obviously, I think that as parliament we would probably weigh higher, with respect to the Solicitor-General, the view of the Chief Justice of the Supreme Court on the constitutionality.

Is there something in the significant correspondence between her and the Chief Justice of the Supreme Court where the Chief Justice has provided any advice or thoughts on the constitutionality? How can she be so certain that she is not introducing a bill to this parliament that could be ruled unconstitutional?

The Hon. V.A. CHAPMAN: I think it is a perfectly reasonable question; perhaps I had not made it clear in the response to the parliament as to the process. Yes, the issue was raised. The member for Florey read out the letter that it was raised in. Subsequently, the Solicitor-General has given advice on that issue. You will see from the letter of 29 April that, first, the Chief Justice no longer raised that as an issue, but, secondly, he has had a viewing of the bill and indicates that he has no further concern about the bill; however, he makes the point that if it is passed that he will activate. I hope that makes it clear, but if he is not satisfied on that then by all means he can contact the Chief Justice in between the houses, if he wishes to, to be satisfied of that.

I am satisfied that the Solicitor-General's advice being made available has dealt with that issue and is no longer relevant to what we are talking about. But, by all means, you can speak to the Chief Justice about that. The prerogative power and the use of it, the impugning of the separation of powers—which was the argument teased out in that letter—and the question of constitutional validity are no longer an issue, on my assessment of the progress of this matter. We moved to what is the model that would be able to be achieved and what could be validly implemented, and that includes a bill rather than regulation.

Ms BEDFORD: If restoration of the title QC will not weaken the independence of the legal profession and the judiciary, how will it strengthen it?

The Hon. V.A. CHAPMAN: Principally by resolving an issue between them that has not been resolved. The member has already referred to statements made back in 2018 by members of the profession and the Chief Justice. This was an issue about which there were strong views held. Notwithstanding that, it is very important to me and our government that those arms do maintain a strong relationship for the reasons I have outlined. Yes, it is very important to me, and it is also important to me that we give our next generation of barristers, those who are deserving of it, a structure for accreditation, assessment and acknowledgement.

Ms BEDFORD: Can the Attorney elaborate on the notion that the postnominal 'SC' is not as well known as 'QC'?

The Hon. V.A. CHAPMAN: If I can say in short, although I rarely do make a short contribution on these things, that one of the strong aspects of the commercial opportunities for our Senior Counsel is that solicitors instruct them and that there is a currency in the title that people have. For better or worse, a Queen's Counsel or a King's Counsel postnominal acknowledgement is one that has international currency in commonwealth countries. It has been so for hundreds of years, so this is not a new thing.

I think there was a genuine advance in the mid-2000s—in about 2008 or 2010—of jurisdictions saying, 'We are moving into a different century and we could perhaps advance this to Senior Counsel and have an SC postnominal rather than one that is attached to the gender of the monarch.' That is a pretty normal, grown-up way to approach it. I think that most people in Australia accepted that, even though we still have the Governor and the Governor-General system of representing Her Majesty.

What became clear is that the opportunity to secure work in that field was more limited because, essentially, the profession had been flooded with a new breed of creature, another SC, which was 'special counsel'. I think we have some 200 of them in South Australia. They have never been in a courtroom, but they are special counsel entitled to practise in South Australia, usually in larger solicitors' firms, who are often not partners in the firm but are considered to be special, in the sense that it is a recognition of their status within the solicitors' world.

So there are a whole lot of people who have SC after their name who, as I say, have never been in a courtroom. They are not Senior Counsel, as we know it—the logical extension, the modern-day version of Queen's Counsel—but they are special counsel and they have SC after their name. It became a topic of conversation.

Mr Picton: They don't put SC after their names though.

The Hon. V.A. CHAPMAN: Yes, they do. The member for Kaurna interrupts and says they do not put SC after the names. I can tell you they do, and the reason they do is that it recognises them as a status in the solicitors' world. I do not take issue with that. I just make the point that, having done that, it has watered down the currency of the role as a Senior Counsel.

That is an argument that has been put in Queensland and in Victoria, and it has certainly been presented by counsel here through the Bar Association, initially, and then through the Law Society. I do not see that as something that is particularly new. It is just one of those things that perhaps had not been encountered or anticipated at the time that we moved towards removing the monarch's initials or the gender identification of QC or KC, but it is clear now.

Ms Bedford: KFC.

The Hon. V.A. CHAPMAN: Which one? I am hoping that there will be lots of Queen's Counsel in the sense of 'Queen' recognition. The reality is that the eldest child—because we changed the law in this parliament, you might recall—whether they are a boy or a girl, under the British monarchy, gets to be the next monarch, which is great, except unfortunately for the next three generations they are all blokes. We will have King Charles, then King William and then King George. So the eldest child of each is actually a bloke.

The CHAIR: William and then George.

The Hon. V.A. CHAPMAN: Yes, William and then George. So we have Charles, William and George to get through before we get a chance of a girl unless, in the unhappy event of the demise of one, then we might have to—

Ms Bedford: That's treason, isn't it?

The CHAIR: Member for Florey, you have asked a question; the Attorney is answering it. We are side-tracking here.

The Hon. V.A. CHAPMAN: It is potentially a treasonable offence. I can go into the Treason Act if you like, but it is potentially a treasonable offence if you are to make a comment that predicts the demise of the monarch. My statement was in relation to the loss of lineage and how that would work. I am not in any way being disrespectful to Her Majesty, and I would never do that. Interestingly, in the Treason Act, it also relates to the friends of the monarch. There is some sort of special arrangement there. It is a different era

The point I make is this: in my time, there has never been a charge of treason. There was an attempt by an individual when I became Attorney-General to have me charged with treason for an act as Attorney-General in 2010. I was not quite sure whether attorney-general Atkinson or attorney-general Rau was in the office at that stage, but it certainly was not me, so that was dismissed. In any event, I did not suggest they go and round up one of the others. I just make the point that it is an unusual offence, it is tried in the Supreme Court, and it is not one that we should discount because the head of our government is still Her Majesty, and I do respect that.

The fact is that Her Majesty is also not just the monarch as The Queen of Australia but is also obviously recognised in the commonwealth countries. Because we have a commonwealth law system, as distinct from the French or that crazy system they have in America, we actually have the capacity for our counsel to undertake work in other commonwealth jurisdictions. That has been a great advance for a number of our barristers in South Australia and Australia generally. We cannot go to the Privy Council anymore, but we still get a chance to be able to practise around the world.

We have good South Australian firms that have offices in London and Hong Kong and obviously practise in human rights courts. These are really important positions to aspire to, and I want those same South Australians to have an opportunity to fight our cases on behalf of South Australia or South Australians in other jurisdictions and get the work.

Ms BEDFORD: At the beginning, you actually hit on the nub of my conundrum or problem: I still do not get why we have to have two systems in a federation the size of Australia. Can we not take some measures to simplify the whole thing? It just reminds me of the days when a plumber could not be a plumber in Victoria or New South Wales. I do not see how it is making things easier by doing this.

The Hon. V.A. CHAPMAN: I hear what the member is saying and it may well graduate to other jurisdictions considering the matter. In fairness, I think in the development of Australia, New South Wales have not only had the most senior legal profession personnel in number—it is a bit like the advance of uniform legal practitioner law, which New South Wales and Victoria have signed up to. Western Australia and we—that is, John Quigley, the Labor Attorney-General, and we—are now looking at how we might be able to network into that because we think that is an advantage for our state's people, as well.

I think there is a gradual progression in the recognition of a national badge, as such, but it is not necessarily something that everyone wants to do. We are not here to impose that on others but I have certainly had a number of these discussions with my colleague in the west and I can see the advantage that it has given to counsel in Victoria—not so much in Queensland; I have not had as much involvement with their legal profession, but I have in the past. I think it is something that will develop.

Alternatively—well, I cannot say that because SC has not been patented. It is not something that the barristers own. That has been pretty obvious because the solicitors have taken it. They see the benefit of having SC and they are using it. That raises some confusion and lack of competition and currency. If the member were to have any concern about that aspect of it, I think the Bar Association or the Law Society would have the best advice on that. I have no reason to doubt that that is any different from what occurred in Victoria or Queensland, which have advanced it.

As I said, Western Australia is working with us in relation to the uniform legal practitioner laws. So I think there is some merit in what the member says, but these things usually take a little while to get through the system. Sometimes it is at a bit of a glacial pace. It is not something that we would seek to impose on others; if anything, why not let South Australians capitalise on the benefit of this before the others? I am not selfish; if the others want to join up, I am happy to help them.

The Hon. S.C. MULLIGHAN: Could the Attorney advise the house how many QCs and how many SCs respectively responded to the consultation?

The Hon. V.A. CHAPMAN: It was initially the Bar Association but there is correspondence I have read from other Queen's Counsel and SCs who have presented proposals to me. There were two who indicated they would leave it as it is and both of them are former heads of the Bar Association. As I said, there are a number of them, but there are also a number of people who are not QCs who perhaps, if they were being considered on merit today, would be. Obviously, there is an appetite amongst the profession for that to be acknowledged.

I am confident in the correspondence I have had from the SA Bar Association and the Law Society that they have comprehensively discussed this issue with their membership: the Bar Association in meetings and the Law Society not only in executive but also in the survey, which I have referred to.

The Hon. S.C. MULLIGHAN: I was hoping to understand, other than the Bar Association as an organisation, how many individual QCs and how many SCs responded to or provided some feedback on the bill. The Attorney indicated that two suggested that it be left as it is. I assume that they are SCs who were advising they were happy with it?

The Hon. V.A. CHAPMAN: No, one was a QC and one was an SC; one who elected to stay as an SC and the other one is a QC. Both are male. There is no reflection on them. They just say, 'Leave it as it is'. However, that is not the view of the Bar Association or I think the 67 per cent of the Law Society—843 respondents to the Law Society. Remember, the Law Society are barristers. Everyone has to have a practising certificate, so everyone has to go through the Law Society. They are not all members of it, but they did a survey and there were 843 respondents. From memory, 67.26 per cent wanted the change. I am told it was one of the biggest survey responses they have ever had.

Mr Picton interjecting:

The Hon. V.A. CHAPMAN: They are a bit like political surveys. If you survey your electorate, you are lucky to get a 10 per cent response. I think they did pretty well actually.

The CHAIR: The member for Lee has another question.

The Hon. S.C. MULLIGHAN: You could take this as 2(a), sir. Was it 43 or 843 SCs currently in South Australia?

The Hon. V.A. CHAPMAN: There are 11 SCs and 34 QCs. I know there was some comment being made before during this debate that the member may not have been immediately privy to, but there was a reference to other QCs, people who had been appointed QCs. Some of them are dead and some SCs are on the bench. Of course, I should explain this—

Mr Picton: Does that include ones on the bench?

The Hon. V.A. CHAPMAN: Yes, it does. My adviser says she is not sure whether that does, but can I say this: one person who is an SC who is on the bench was interested in becoming a QC and wanted to but, I was advised, was unable to do so because they could not receive two commissions from The Queen, both as a judge and a QC. So, if that ever happens in the future, they will have to wait until they finish their term to apply to be a Queen's Counsel.

The CHAIR: Member for Lee, given the last question was 2(a), this will be question No. 4.

The Hon. S.C. MULLIGHAN: This is three.

The CHAIR: This is your last question.

The Hon. S.C. MULLIGHAN: Just so I have it correct, there are 11 SCs and 34 QCs and 843 respondents to the survey, all of whom I presume have practising certificates?

The Hon. V.A. CHAPMAN: Assuming that all 843 have practising certificates, whether they are all counsel or whether—the breakdown of how many are QCs or SCs, I do not know the answer to that. You could speak to the Law Society about getting a breakdown of that. The Bar Association, from memory, has about 400 in its membership. I hope I am not offending them by saying that number. It might be 600. It is a very much smaller cohort. It is only barristers who go to the bar, and I think they allow the DPP and a couple of other people who work for the government, but largely you have to be at the independent bar to be a member. I am advised 22 SCs and 34 QCs is the total.

Ms STINSON: I think the Attorney just mentioned the matter I wanted to clarify, which is whether those 34 QCs and 22 SCs also include members who are currently serving on the bench. If she does not know that, would she commit to returning that information to the house?

The Hon. V.A. CHAPMAN: I am happy to do that. We will clarify firstly whether they are there and, if they are not, how many are on the bench. You can look on the public record, but I am happy to get that material for you and get it between the houses.

Ms STINSON: Is it possible to get a list of who the QCs and SCs are? Is that published somewhere? I am aware of the fact the Bar Association does publish the postnominals, but not everyone is a member of the bar. There are some who are not members of the bar and not members of the Law Society.

The Hon. V.A. CHAPMAN: Or indeed QCs who are now retired and do not see the need to pay the high Bar Association fees to be in it. I do understand that. Yes, there is a roll of Queen's Counsel. I do not know whether it goes back as far as having King's Counsel on it. I am not old enough to look back and see who is a KC. The only one I know is Menzies. In any event, they are around. If the list is available, I will arrange for that to be sent electronically to the member. My adviser is just writing down the detail. How many are QCs, how many are SCs and, if they are available, the names of the current ones; is that what you were asking?

Mr PICTON: Yes.

The Hon. V.A. CHAPMAN: And whether or not they are sitting on the bench. We will try and get that information if it is available.

Clause passed

Clause 2.

Mr PICTON: What is the Attorney's intention in terms of when this act would start? On the presumption that it passes parliament within a reasonable period of time, what does she have in mind as a commencement date? Has she discussed the start date with the Supreme Court, the Bar Association or any of the QCs or SCs?

The Hon. V.A. CHAPMAN: I have not discussed it with the Bar Association or the Law Society. I have canvassed it with the Chief Justice, to the extent that I have indicated to him that if the bill did pass through the July sittings, for example, there would be an opportunity for him to undertake his process under chapter 12 for this year if he wished to do so; that is, he could offer to the profession, the opportunity to put in their applications, and he would go through the process of consideration because that normally happens, as I understand it, in August/September each year.

It does not have to be that time, I do not suppose, but under the old chapter 12 rules, there was a time frame in which you had to put in your new application. It was considered within a certain period and, although there was the exception of John Rau's application, which went in out of time after others had been accepted and/or rejected, there is a time for process that is normally abided by. I had indicated to the Chief Justice that if there were an opportunity for that to be available this year, I would try to accommodate that.

That is all I have indicated to the Chief Justice, but usually these things go back to the body that is going to be implementing them and they will say, 'Well, we need an extra three months to train people or two months to do this or that.' I have had that initial conversation with the Chief Justice and, if we are reasonably diligent in our parliamentary process, I would try to accommodate the opportunity for him to appoint Senior Counsel this year, as per the usual practice that operates under chapter 12.

Mr PICTON: When this does commence, the Attorney said that a particular benefit would be that Senior Counsel would become QCs and would be able to get more work. What is she basing that on? Has modelling been undertaken? Has an economic contribution study been done? If so, who undertook that work? Is there a report? Will she release that report if there is one?

The Hon. V.A. CHAPMAN: I personally have not undertaken modelling work. I have received submissions from the Bar Association and the Law Society, as I have said. They have articulated and advocated that that is the position. I have read reports in relation to the lead-up to the Queensland and Victorian model changes, and similar sentiments were raised by the parties canvassing those matters in those jurisdictions.

I have had no evidence to the contrary. In fact, even the two persons—as I said, one is a SC and one is a QC—who have indicated to me, 'Just leave it as it is,' have not advocated that this is not an issue. They have not come to me to say, 'That's a ridiculous idea. Of course, there is no diminution of currency or value of SC compared with QC, and therefore you should ignore it.' I have not had that submission put to me at all.

Nor have I had a submission from the Law Society or any solicitors to suggest that, 'If there's any confusion, we will just drop our SCs as 'special counsel' in our solicitors' world,' for obvious reasons. I think they see it as an advantage, and if they can piggyback on the SC value perhaps they do. I have not asked them to obviously, but there has been no offering of the abandonment of that in relation to the use of 'special counsel', to abbreviate that to SC.

Mr PICTON: When this commences, there is obviously a process that is set up for people to convert or trade in their SC to a QC or a KC, as the case may be. Would there still be the prerogative for the executive and the Governor in Council to appoint a QC outside that process? Would that still be a legal possibility?

The Hon. V.A. CHAPMAN: I am advised no, and there is no intention of the executive to seek to have that power. We do not want that job. We think we are not suited to that job. It does introduce political decisions, and that would be inappropriate. The judges are the best to do that job.

The Hon. S.C. MULLIGHAN: Unfortunately, I was unable to participate in the earlier stages of debate on this bill due to other commitments but, before coming down to participate in this section of the debate, I seemed to hear the Attorney make reference to the cachet that the postnominal of Queen's Counsel provides legal practitioners, particularly in the commonwealth, and that that was one reason why some had provided their view to the Attorney that the resumption of the QC designation was desirable rather than continuing on with the SC designation.

Of the respondents to or participants in the consultation stage of the formulation of the bill, how many Queen's Counsel and Senior Counsel made it clear that they wished for the resumption of the Queen's Counsel arrangement due to the broader arrangements throughout other parts of the commonwealth?

The Hon. V.A. CHAPMAN: I do not think I could be specific as to how many. I think I have indicated that the Bar Association had their meetings and had these discussions among their membership. They presented this proposal. They presented it to the Chief Justice. They had differing views on what should occur, so I cannot give you a number in that regard. I do recall one Senior Counsel and one Queen's Counsel suggesting that it would be just as easy to leave it as it is.

Rather than abandoning the SC, I want to make it absolutely clear that if somebody is recognised with an SC by the Supreme Court under the new model there would be no obligation on their part to have to seek to have it changed—upgraded, moved on, recalibrated, value-added or however we want to describe it—to a QC. If they wanted to be an SC, they were appointed as an SC and they want to continue as an SC, they are perfectly entitled to do so.

As Attorney-General, I would not have any power to direct them to do it or to impose it, nor would I have a gatekeeper role to say, 'Actually, I don't really like you. You stay out.' SCs would be supported by a process determined by the judges. It would be the executive to whom, if they achieve that and if they wanted to seek to have a Queen's Counsel recognition, they could apply. But it is entirely up to the recognised barrister whether they value-add or upgrade.

The Hon. S.C. MULLIGHAN: I wonder if that reference was in fact almost a Freudian-type throwback to the career of Robin Millhouse, who some will recall was elected to this place in 1955 as a member of the Liberal and Country League and later became known as one of the three splitters to form the Liberal Movement with Steele Hall and Martin Cameron, as we were discussing the other day with reference to the freedom of information legislation. Of course, after some distance, separation and time apart, people were rejoined, and the moderate faction of the Liberal Party as we now know it was reincorporated with the presumably more right-wing elements of the Liberal Movement—

Ms Bedford: The splinters.

The Hon. S.C. MULLIGHAN: —the splinters—to form the South Australian branch of the Liberal Party.

I wondered if the reference to the commonwealth was relevant. Of course, Robin Millhouse had a varied career not just as a member of parliament. He was appointed to the bench from the parliament by a Liberal government, where he had a career for a time as a justice of the Supreme Court. He was also the Chief Justice of Kiribati for a period of time, a member of the commonwealth, and also, I understand, of Nauru and possibly Tuvalu, all remnant members of the commonwealth.

I can understand that Robin Millhouse might have been overlooked for those appointments had he not been a QC; he might not have attracted the interest of the administrations of those countries. It is salutary to remember these lessons because I heard the member for Hammond go on at some length about the extraordinary outrage in the minds of those opposite that someone who had practised extensively as a solicitor and later as a barrister, who happened also to be an attorney-general, could be afforded a postnominal designation of SC. Like the other contributors to this debate, I am happy to say that I can contribute to it as someone who will never be an SC or a QC.

Mr Picton: Don't talk yourself down.

The Hon. S.C. MULLIGHAN: No, I am happy to do it, and I am in good company.

The Hon. V.A. Chapman: The member for Enfield might be, so don't be so rude.

The Hon. S.C. MULLIGHAN: No, true. I was more looking over at the members for Hammond and Heysen.

The CHAIR: We are dealing with hypotheticals, really, aren't we, member for Lee?

The Hon. S.C. MULLIGHAN: No, it is not hypothetical, sir. I guarantee it will not happen. I will not be an SC or a QC; that is true. I was keen to ask the Attorney whether, on the commencement of this bill, some other regimes might also be recommencing as well, regimes which throw us back to a previous time when we tried to recognise people's service in particular professions or areas of community involvement. For example, might the Liberal government in South Australia be making petitions for the resumption of knighthoods, for example, in the same way that Tony Abbott did in 2014?

Rather than adopting a progressive recognition of an Australian's contribution to their particular walk of life, like an Order of Australia award, we might perhaps resume or seek to resume an arrangement where we could have knighthoods. You may differ from me, sir, but if we are to go back to the Queen's Counsel regime for those—let me get these sums right—22 SCs and 34 QCs out of the 843 respondents to the survey, that would leave 790 putative SCs and QCs who are keen to be involved in this consideration. That is remarkable.

Imagine having the opportunity to nominate how well you would like to be recognised for your service to the law. That is remarkable. Perhaps that is why we are in charge of making these laws.

The CHAIR: Member for Lee, this clause deals with the commencement of the act.

The Hon. S.C. MULLIGHAN: Indeed.

The CHAIR: Yes; thank you.

The Hon. S.C. MULLIGHAN: I am fleshing out the point, sir.

Mr Picton: It's a preamble.

The Hon. S.C. MULLIGHAN: Yes, that's right. We are nearly at the nub. I was wondering whether there might be any more monarchical throwbacks that the government might be putting to the parliament in line with the resumption of this sort of regime, in light of what we have seen from the recent efforts of the federal Coalition government to resume knighthoods.

The Hon. V.A. CHAPMAN: I have not seen on behalf of the Victorian or Queensland Labor governments, having restored the opportunity for QC appointments, any rush to knighthoods or other types of monarch-related recognition. Nor is it the intention of this government. I see us as the facilitators for ensuring that we have a regime for competent assessment by judges and the opportunity to have the choice to have a Queen's Counsel or, in due course, potentially a King's Counsel recognition, for all the reasons we have mentioned.

Although the circumstances around the 2008 decision and changes were negotiated between the then chief justice and acting attorney-general Rann, when the opportunity to have Senior Counsel was passed and that structure came into being, all the QCs of South Australia were offered the opportunity to become SCs. Only one decided that he would become an SC: the current Chief Justice. That was entirely his decision.

The member's own father was a Queen's Counsel and very well regarded. It had a level of status in the profession and obviously in his work as he went on to do other commissions and the like. He was recognised by not only the position that he held as Queen's Counsel but also the senior level of expectation that came from that. Obviously, he was also a Supreme Court judge and had an extensive practice at Mullighan, Jordan and Howe and then later at the bar.

I totally respect the decision of those who decided they would keep their Queen's Counsel. That was a currency they had and were honoured with, and they did not want to give it up. Leaving aside the member's father, because I do not want to disrespect him in any way, some other members of that group who were Queen's Counsel had been staunch republicans and probably still are today. When offered to trade in their QC for an SC, they said, 'No, thank you very much. We are keeping our QC.' That is a choice and we respect that.

When the opportunity was given for a commission via the 2018 procedure—that is, to put a commission while the chapter 12 operation was there to present—for people who wanted to convert from an SC to a QC, the emails could not come in quick enough. There were 17 overnight. In fact, there was an eighteenth: a sitting judge who was then told, 'I'm sorry, actually you have a commission from Her Majesty and you are not allowed to become a QC.' Apparently, there is some process that prohibits them from being able to do that while they are under commission as a judge.

I did not see any groundswell of, 'What on earth is happening here? Why would we want to go and give this option for QCs?' They could not get to the door quick enough. I had the honour of presenting their names for the commission. It did not take any selection process of saying, 'You're in and you're out,' or, 'I don't like you.' That was not a choice. I presented to all those who sought to have the appointment as Queen's Counsel and they were recognised by His Excellency.

I suppose there is a level of expectation that this is a pretty popular opportunity for those who have had them and want to keep them or those who did not have them and had the chance to get them. I cannot comment on Robin Millhouse QC. He was well known to me and was actually counsel for my mother in a very longstanding case. He regularly brought over his army to Kangaroo Island and ran up and down cliff faces and all sorts of things, so he was a man of many talents. Robin Millhouse was also appointed as Queen's Counsel. He was a member of this chamber. I understand that question time used to start at 2 o'clock and he would be given the first question and then he would head off to court at 2.15.

People have very different talents. I cannot make any comment about whether he was appointed to Nauru or any other position that he had post his position at the Supreme Court. It is not uncommon for our senior judges, for the Northern Territory particularly and here, to take positions in those locations for a period of time. Sometimes they used to go to Fiji. We had a very famous contribution from former Judge Wilson who went to Fiji to deal with the death penalty which was constitutionally challenged after an uprising in Fiji probably 15 or so years ago at least, probably 20 years ago.

South Australian senior people have made very significant contributions as jurists in our neighbouring regions and I commend them for it, but I cannot comment any more on whether he was interested—before his death, of course—in changing in any way his role. He may not have ever had the opportunity to be an SC; I do not know.

The Hon. S.C. MULLIGHAN: I am not quite sure why the Attorney made reference to my father given that he had already retired not just from the bench but also from his commissions by the time in 2008 when the SCs came in. I do not think it is surprising at all that people who have already retired from the profession would not be actively seeking to change those sorts of arrangements.

In the same vein, it would not surprise me that someone like the current Chief Justice, Chris Kourakis, would be the sort of person who would want to be first cab off the rank to try not just to make it clear that he has his own belief or preference for what he would like his postnominal to be in this regard but also that he is the sort of person who thinks that if there is to be a progression, a modernisation of this sort of arrangement, away from something that has a direct link to the British monarchy, he would want to try to set an example. That would not surprise me at all.

What I find curious is now the desire not just to continue on with the current arrangement but to provide some relief for those people who are SCs who feel that they have been denied the opportunity to be a QC, even though, of course, the very process and the recognition that being an SC provides are designed to be equivalent to that of a QC. If the argument from the government is that there is an ongoing view in parts of the legal fraternity—or the legal profession, I should say, as we are trying to move away from using such gender-specific language, albeit with the jump back to QC—then surely that indicates a need for the profession to start sending a clearer message that there are more modern progressive ways to recognise service and talent and skill and commitment to the industry.

In that regard, my next question on the commencement, clause 2, and I will make this very brief and perhaps the Attorney could furnish us with an answer after the break, is: are any further efforts planned to coincide with the commencement of this act to try to restore some balance into the recognition, if there is imbalance, between an SC and a QC?

The Hon. V.A. CHAPMAN: No, there is no identified intention on our part. I do not imagine that either the Bar Association or the Law Society are proposing any attempt in that regard. As I say, there has been no challenge to the use of SC postnominals by solicitors who were 'special counsel'. As to the rest of it, I will just take that as a comment.

Sitting suspended from 17:59 to 19:30.

Clause passed.

Clause 3 passed.

Clause 4.

Mr PICTON: We did have some discussion earlier about KCs which, before this bill, is something I probably had not given a lot of thought to. Of course, we have all grown accustomed, particularly people such as myself, who were born during Queen Elizabeth II's reign, to it being a QC—

The Hon. V.A. Chapman: All of us have been, I think.

Mr PICTON: That's true—

The Hon. V.A. Chapman: Who else in the parliament would have been here when—

Mr PICTON: I would not want to guess people's age, whether anyone was born before 1952, but there may be somebody who was born before 1952. However, for most of us, the vast majority of people, we have grown accustomed to it being a QC. The Attorney mentioned that probably the only KC she could remember was Sir Robert Menzies; presumably after 1952 that became a QC, but beforehand it would have been a KC.

To the extent we have been talking about there being a cachet attached to a QC, I propose that is actually attached to a QC and that nobody really understands what a KC is. It has been 68 years since there have been KCs, a very long period of time. There may be some people alive who were once KCs, but I imagine they would be in their late 90s, if not older. Of course, I wish Queen Elizabeth II a very long life, but the sad truth is that all of us depart the earth at some stage. At that time it will become a KC, and the cachet that was associated with a QC will evaporate.

The argument being put forward in this entire bill is that there is this associated cachet and that people understand what a QC is, but that will evaporate upon The Queen's death and it will become a KC. What thought has the Attorney given to that, particularly with the fact that people might be more familiar, at the time of The Queen's death, with an SC than a KC? That may have more stature in the community because people understand, from New South Wales and other jurisdictions where there are SCs.

Should we look at a situation where, upon The Queen's death, we do convert the system to SCs rather than QCs, because there will be no more QCs, or do we continue QC onwards forevermore, disconnected to the current reign of the sovereign but as a nod to Queen Elizabeth, because that would contain the cachet that apparently this bill is designed to protect?

There are a few questions there to the Attorney in terms of what she presumes will be the step after the death of our sovereign, Her Majesty Queen Elizabeth II. Notwithstanding the Attorney's discussion as to whether any of those heirs may depart the earth, hopefully that is not happening and it will be King Charles who takes the reins, and all these people whom we are trying to protect with their QCs will have that evaporated overnight.

The Hon. V.A. CHAPMAN: I am not of an era pre Queen—or BQ, 'before Queen'—so I am not familiar with what the practice was at the time of the death of King George VI, with the accession to the Crown of the young Princess Elizabeth, but I understand there was a capacity to convert that to Queen's Counsel, the concept being that the counsel, back in those days, was a counsel to the monarch. That has been the tradition of this status.

Certainly, the member raises some interesting questions about whether we would, in some way, want to continue the Queen's Counsel, on the basis that that has some level of gravitas because of Her Majesty, her long reign and high regard, and all the things that go with her respect in the community. I do not move away from that at all, but the concept is that counsel to the reigning monarch is the status that is associated with it.

Other countries like England, Canada and others use this Queen's Counsel. Even a country like New Zealand still has Queen's Counsel. These are all matters that I suppose will develop in the future, but at the moment I expect that in the lifetime of some of us here there will be a king on the British throne, remembering that under our Australia Act the king or queen of England is also the king or queen of Australia; it is a separate title.

Unless we move to the republican side of matters, that will continue, but the contaminant to the currency and value of the SC line will not change. That is limited by the existence of 'special counsel', as I have explained before, so the devaluing I suppose of that SC allocation. This is no disrespect to the solicitors who are appointed as 'special counsel', but SC is being paraded as a form of status for 'special counsel', and in addition to Senior Counsel, so we have plenty of these others, in fact many more who are in solicitors' firms registered to operate in South Australia than we have of Senior Counsel and Queen's Counsel put together. This is the practical problem that we are looking at.

Of course, provision is here for Queen's Counsel or King's Counsel for obvious reasons, and I think if we maintain this counsel to the monarch concept then for some time we have three generations to come of the heir to the throne generationally being a male firstborn, so I think we have a long line of blokes. That is no reflection on Charles, William or George, but at the end of the day I think it will be a long time before we get a Queen Beatrice or anyone else.

Mr PICTON: In relation to how this has been structured, what I understand is that people will be appointed SCs by the court. They will then be able to apply to the Attorney-General to be elevated—that is a question as to whether it is an elevation or not—to a QC or a KC, and that will happen through the Governor, presumably in Executive Council. However, the removal of a QC is not by the Governor but by the Chief Justice, which is a peculiar scenario in which the Governor appoints, but it is not the Governor who removes: it is the court who removes.

The question is how that has come to pass, that there is a difference between the two, particularly given that the history of the QC, as the Attorney was just saying, is associated with being part of the Queen's Counsel—associated with the executive to the queen or the king—but now the court is going to decide whether that person is removed or not. It does seem a peculiar scenario not to have any ability for the Governor to do that and for the court to not recommend to the Governor that the person be appointed as the QC but the Attorney-General doing that and the court then being able to remove that person.

The Hon. V.A. CHAPMAN: That is a fair question. In short, the appointment or recognition of a Queen's Counsel is with the court, as is the advance of a legal practitioner. He who gives takes away, to this extent. Whilst there might be what we could describe as an advance or as value-adding to the SC model, the appointment—the recognition of something to be of senior status for the purpose of appointment—is with the courts. They make that assessment, and the court will make the assessment if there is a valid reason for the removal of that—misconduct or some other precedence in that regard.

That is entirely appropriate because this proposal is consistent with the determination of someone's merit being by the court for the purposes of being recognised as a Senior Counsel. Only with that qualification is this proposal for the eligibility able to be recognised as a Queen's Counsel. If you remove the primary assessment and the capacity to be a Senior Counsel, it follows that you should not be able to continue to operate as a Queen's Counsel if the Supreme Court had determined that you no longer should validly have recognition as a Senior Counsel, in the generic sense. That is the only reason.

The qualification and the disqualification are determinations of the Supreme Court. The right to be able to be a Queen's Counsel is dependent upon a continued assessment as a Senior Counsel. If that is withdrawn then the others lapse. It has been drafted in that way, and the draft of this has gone for approval to the Solicitor-General and also to the Bar Association and the Chief Justice.

Mr PICTON: I note in the bill that the drafting refers to somebody taking precedence as a Queen's Counsel or a King's Counsel, which drives me to ask whether there is a precedence, in any form, of a Queen's Counsel over a Senior Counsel, whether that is in the order of precedence or any other legal precedence. I am trying to think of that unit in the DPC who—

Ms Stinson: Protocol.

Mr PICTON: The protocol manner in which there is a precedence between a Queen's Counsel and a Senior Counsel.

The Hon. V.A. CHAPMAN: There is no precedence that is applicable to support the principle that a Queen's Counsel is superior to a Senior Counsel. Precedence relates to the date of appointment and the priority in which they are recognised. We are currently trying to get hold of the role of Queen's Counsel, who is appointed at a certain date and has precedence in order of their appointment. Similarly, we have precedence in the order of appointment of judges. In the Supreme Court, for example, the order of appointment is the Chief Justice, who was appointed as a puisne judge originally and then elevated to Chief Justice. Then we have the Hon. Trish Kelly, who is the next in precedence of appointment. That relates to the—

Mr PICTON: So there is one list, not two lists.

The Hon. V.A. CHAPMAN: Correct. So there is no suggestion that a person who is appointed as Senior Counsel in 2020 and does not elect to be a Queen's Counsel is in any way diminished by someone who is appointed as Senior Counsel in 2021, who then applies for and is granted Queen's Counsel, as though that somehow or other has some superiority over the senior counsel appointment from 2020.

They are both appointed as senior counsel by the Supreme Court in order of precedence and the value-adding of such—I have described it in that way—or the advance to the appointment as Queen's Counsel does not take them out of the order of that. They will simply be recorded thereafter and recognised in judgements, in public and before the court as QC instead of SC or KC, as the case may be.

Ms BEDFORD: Attorney, you indicated earlier that you have no interest or desire to be involved in these appointments, but what is to stop a less scrupulous attorney-general in the future ignoring the obligatory provisions in the bill?

The Hon. V.A. CHAPMAN: The obligation in this bill is to oblige as a must the attorney-general to present the case for commission as Queen's Counsel or King's Counsel, if the applicant seeks it. There is no discretion on the attorney-general. If, for example, there was reference in here that the attorney-general may present that—that is, advance that on application—then it would give a discretion to the attorney-general to reject someone they did not like or did not consider it was a meritorious advance or put nobody up at all.

That is one of the risks of making that an option to an attorney-general, that someone in the future might decide they do not want to put anybody up or start politically picking people. I think that would completely defeat the purpose of having the judiciary as the arbiter of whether someone is of merit to be Senior Counsel and would take away the choice of the barrister themselves for he or she to seek that advance to Queen's Counsel and place it in the hands of an attorney-general. I hope that all attorneys-general would remember their role as the senior law officer of the state, but we cannot be sure.

There could be a situation where an attorney-general were to act on a political basis. That, in my view, would defeat the purpose of all of this and would potentially undermine it and would certainly bring back politics to the appointment which it has been rid of since 1970. At least from 1970 on, the approval of the chief justice was required before an executive could even act for the appointment of Senior Counsel, and then of course in 2008 we changed the structure.

So I think there is an important benefit in the attorney-general of the day being obliged if they receive an application to submit their name and that should not be an optional extra. That should be a discretion of attorneys-general. It should be mandatory. I have had some people canvass to me the idea of having that as an option, but of course it could lead to the sabotage of the whole process to be perfectly frank. It could lead to a situation where a future attorney-general says, 'I am not going to put anybody up,' and therefore deny those who seek to have that status and elect to have it and make that something that is potentially political. I think that would be a significant diminution of the value of this whole process.

Ms BEDFORD: I would still like some clarification, if we could, Attorney, on how the title SC or QC is going to help anyone, in particular my constituents, work out who is best able to represent or defend them in a matter.

The Hon. V.A. CHAPMAN: Firstly, your constituents need to be confident that if someone has been appointed to Senior Counsel rank that it has been done by people who are in a position to observe them and be able to monitor whether they are worthy of that assessment. In my view, those people are members of the Supreme Court. They are the most superior court members in our structure and they see, essentially, the best of our counsel.

Sadly, a lot of our counsel go interstate and a lot of our Senior Counsel are in the Federal Court. I would like to think that our Supreme Court could actually attract back some of this work, and I will do everything I can to support them to do that. From the constituents' point of view, from the people of South Australia's point of view, they need to know that there is a high standard of people who are advocating cases, making common law before judges, that is, putting the submissions in for judges to make decisions. That is an accumulation of common law that affects your constituents' lives.

So it is important that we have the best and brightest brains making those submissions, giving the best information possible to the judges to make these decisions, and recognise that, if they are identified by their judicial peers as such, they have an opportunity of being Queen's Counsel or King's Counsel—that is true—but the process is one in which the Supreme Court judges make that assessment, and I think that is critical to maintain.

As has been pointed out in the member for Kaurna's questions, they will also have the right to give and the right to take away—the qualifying feature which can be added on later by a Queen's Counsel or King's Counsel appointment, but which fundamentally must be there as a base of achievement, a threshold to get over, and they have to maintain that. If there is an issue of misconduct, the Supreme Court would act to strip them of that recognition. I cannot immediately think where that has occurred to anyone.

I have seen cases where people have been removed from their right to practise and disqualified from holding a legal practitioner's practising certificate, which means they are then not able to act as solicitor or barrister. Sometimes they are suspended, not completely disqualified, for a period of time. Recently, an application came before me to give me advice that a former practitioner who had been struck off was applying to the Supreme Court to be readmitted. That is a process that as Attorney-General I am told about; I have a right to put a submission in in those sorts of things. As it turned out in that case I did not; the Law Society was handling the matter.

The arbiters of who is a fit and proper person to be admitted or readmitted, and also to have the highest status of Senior Counsel, is and remains under this proposal with the Supreme Court. I maintain that that is how it should be and that if they want to have the option to value-add then they are going to have that threshold first.

Ms BEDFORD: Earlier, we talked about the number of people who were QCs or SCs and the genders of those people. There is a glaring imbalance in what we are presented with. Has the Attorney any idea or suggestions about how that imbalance might be redressed? We often hear the argument about merit flung around this chamber as well, and I think the number of female lawyers involved in practice in South Australia is such now that there would be any number of meritorious female applicants for this sort of position. What will the Attorney do to help address the imbalance?

The Hon. V.A. CHAPMAN: The first thing is to make sure that we have a process that recognises a senior level of counsel. We need to do that because I cannot elevate anybody or present anybody for recognition unless we get that sorted out, and I think the sooner we do it the better.

Secondly, as Attorney-General I meet with the Women Lawyers Association and representatives of women at the bar. I think it is a role as Attorney-General, and as the first female Attorney-General, to ensure that we not only meet with but encourage people to nominate or encourage themselves to put forward an application, as is the chapter 12 process these days. Usually, it does not happen without somebody saying, 'I think you really do need to consider this.'

Ms Bedford: It's like the Order of Australia.

The Hon. V.A. CHAPMAN: Well, it's not a nomination. You do not nominate somebody as you do for the Order of Australia, which is a secret squirrel sort of process. For any one of us in these positions, not just as Attorney-General but as members of parliament, it is important for us to say that to people we think have merit—whether they want to stand for parliament, or advance their name for Senior Counsel—to put forward a nomination to be a magistrate or a judge, for example. These are all things that I think we have a role in promoting good counsel.

As you probably know, for about 30 years now there have been more women graduates than men out of the law school in South Australia each year—now three law schools—but there is a shallow representation in numbers in the QC ranks, SC ranks and/or bench appointments. I hope with the recognition I have given to senior women in appointments to the District Court—I have not had the opportunity in the Supreme Court other than the appeal court at this point, but there are three more to go in that regard—that the member would recognise that some very good women have been appointed and I am proud of that as Attorney-General.

I think there is a need, just as in parliament, for there to be a reflection in the body that either adjudicates on them or makes the law, whichever is to apply, to have representation both culturally and in gender. I am an advocate of that, and I therefore say to the member for Florey that, certainly in the role as Attorney-General, I consider it quite a privilege and I think therefore regularly meeting with those organisations that can foster and nurture that advancement will have my attention.

Ms STINSON: I want to ask a question about some comments the Attorney made earlier in response to a question in which she was asserting that there are some members of the legal profession who use the postnominal 'SC' but are in fact not SCs and are actually 'special counsel'. If that is the case—and I see the Attorney nodding—then what has the Attorney done to raise that?

Surely, that is quite fraudulent behaviour of anyone to represent themselves as something they are not, particularly in a public way. Clearly, 'special counsel' is not the same as SC and anyone in the legal profession would know it is not the same, so what is the Attorney doing to prevent any such misleading behaviour by members of the legal profession to the public or even within the profession?

The Hon. V.A. CHAPMAN: I think the member needs to be careful to use the word 'misleading'. As I said in my earlier contribution, there is no patented entitlement to the postnominal SC by barristers and so the Senior Counsel (SC) nominal is not something they have ownership of. So if the solicitors' world develops 'special counsel' as a title and they abbreviate it after their names as SC, they are perfectly legally entitled to do that. I have made quite a lengthy contribution to this debate about that issue.

It is not a question of saying, 'You people over there in the solicitors' world, we have been using this since 2008, so you people shouldn't use it.' This is something that is out there and is a recognition of people who have advanced within a solicitor's world. They have as much right to use SC as anyone else. The problem for the Senior Counsel, as barristers, is that they feel that that has reduced the status or the value of SC for the purposes of Senior Counsel.

I cannot make it any more explicit: there is no power for the barristers to say to the solicitors, 'Tough luck. I know that this has been used internationally in the commercial world, in solicitors' worlds, but we have been using it now since 2008 in South Australia and some other jurisdictions,' because it was all in the last decade that other jurisdictions moved to this SC model, and say, 'We want to have this exclusively.' That is not available to them and nor am I in a position to say to them, 'I am picking the side of the barristers and they should be able to use SC and not the solicitors.'

This is the real world and this is one of the reasons, and one of the pre-eminent reasons, that the bar has come to us—and the bar did in Victoria and the bar did in Queensland to their Labor governments—to say, 'The currency of our status is just smashed and we need to be able to use monarchical postnominals to be able to compete,' and I hear that.

Just in case the member did not hear this, I have not actually had it raised, even by the two people who are Senior Counsel—one is a Senior Counsel and one is a QC—who said, 'Look, just leave it as it is.' Neither of them raised with me that there was no merit in this argument about the loss of status as a result of the use or overuse or extended use of 'special counsel' within solicitors' firms.

As I said, there are plenty of these people who have the right to practise in South Australia. Some of them are posted in other headquarters of their firms. They are perfectly entitled to use the postnominal and they do and they get status within their firm. There are plenty more of them, actually, who never go to court and who well and truly outnumber the status of the barristers we are talking about.

That is the problem in a nutshell, and I do not have any power to interfere with that. I suppose the barristers or solicitors, one or the other, could have gone and tried to patent this sort of title, but it is too late now; it is used internationally.

Ms STINSON: Can the Attorney provide any examples of people using this SC when they are actually 'special counsel'? I know quite a few people who are 'special counsel' and they certainly do not refer to themselves as SC. I have never heard them refer to themselves as an SC and I have certainly never seen them put the letters SC after their names. They describe themselves as 'special counsel'.

Has the Attorney had anyone raise this in writing with her that there are people who are using SC to mean 'special counsel' and that this is causing some sort of confusion? Based on what the Attorney just said, does it follow, then, that I could just go out there and call myself Jayne Stinson QC and there would be nothing that you would be able to do to stop me from misrepresenting myself as a Queen's Counsel in public if there are no rules around that?

In any other profession, if someone was professing that they were and had qualifications of a particular profession, whether that is a trade or whether it is a professional line of work, I just cannot see that you, who are also responsible for the area of fair trading and consumer and business services would say, 'That's fine and there's nothing I can do about it if someone wants to represent themselves with two letters that most people would understand to stand for Senior Counsel when actually they stand for something entirely different.'

My questions are around where this is actually happening, because it is not something I am aware of. Of course, I do not have as extensive legal contacts as you or many on the other side would, but having worked in that area as a court reporter for many years and having spoken with many 'special counsel' on matters, it is just not something that has ever been raised with me before and certainly not something that has been raised in the context of there being any sort of confusion. I have just never heard of that SC postnominal being used.

I am really disturbed if that is happening, because that would mean that people are representing themselves to members of the public who maybe would not know the difference between 'special counsel' and Senior Counsel and maybe extracting some sort of benefit from that or gaining additional business by people being misled into thinking that they are Senior Counsel when they are not.

Like I said, I am not aware of that happening, but I think it would be incumbent on the Attorney to disclose what is happening if she says that this is happening and to actually see what the parliament can do. It does not seem consistent to me or similar at all in the approach that we would take to any other trade or profession where someone is publicly misrepresenting what it is and what qualifications and what recognition they have within their profession.

The Hon. V.A. CHAPMAN: Firstly, can I be absolutely clear: the member for Badcoe could not describe herself as Jayne Stinson QC. That would be a misrepresentation. The QC title has to be granted as Queen's Counsel. There is no question about that. Even with a legal qualification, if you go through and get your Senior Counsel title, you have to actually go through that process to be appointed as Queen's Counsel.

The 'special counsel' is different to the following extent. You have a Senior Counsel rank; you put SC after your name as Senior Counsel. We have had that regime in South Australia since 2008. The world did not start in 2008, I have to tell some younger members occasionally. I tell my own children that the world did not start 20 years ago. The fact is, though, that a 'special counsel' has become the new senior status as a senior barrister.

However, grown up separately to that is the 'special counsel' title. These are people sometimes described in the solicitors' world as people who may not be advanced enough to be given a partnership. It is almost like a sort of second status as 'special counsel' within a firm. That might be an unkind description of it, but it is not an uncommon description that is made. You get a bit of recognition, but you are not actually good enough to be offered a partnership, so they say, 'You have been with us 15 years, so we are going to make you "special counsel".'

Mr Picton: Do they use the initials?

The Hon. V.A. CHAPMAN: Not always. They may simply record themselves on the letterhead as 'special counsel'. There is nothing stopping them having SC as a recognition—

Ms Stinson: Yes, but are they using it? Are they actually using it?

The Hon. V.A. CHAPMAN: That is my understanding. All you have to do is meet with the Bar Association, if you have not already. Any member is welcome to do that, and I urge them to do it. This is the issue that has been raised with them and the watering down of the currency.

Ms Stinson: So they told you that people are using this.

The Hon. V.A. CHAPMAN: I cannot make it any clearer. If you do not accept it from me, go and speak to the Bar Association. Go and speak to the colleagues of the Bar Association in Victoria who presented this argument to the Victorian government and Queensland. They are all on this page of identifying the diminution of the value of the currency relative to the QC label in the commonwealth family and, secondly, the elevation of the use of 'special counsel' as a confusing and competing label.

I do not want to be rude about describing it, but it is a descriptor that people use to in some way hold themselves out as being better than the average. That is fine, but I just make the point that barristers do not own it exclusively and it is causing confusion. If you have any concern about that, even if the member has not heard of it herself personally, and I accept that in the courtrooms that she dealt with in her previous life as a court reporter she may well have come across those who were not 'special counsel'.

Some would have been 'special counsel' as instructors because a number of them would be instructing solicitors, I would think. Though predominantly, in my experience, 'special counsels' have been multiplying in number in the commercial world as distinct from the criminal world, they are obviously an effuse profession in South Australia and an opportunity for a firm to provide a variety of services.

I cannot make it any clearer from my perspective. I accept that submission. I have not had an indication from the two people who have said to me, 'Just leave it as it is,' that it is a competing element that is not worthy of addressing. They have not come to me to say, 'Look, that's just a crock. It's just complete nonsense. Everybody out there in the world knows what a QC is, what a "special counsel" is, what a Senior Counsel is, and this is just a nonsense. There is no competition on this.'

I have never had that put to me in the submissions that have received. I accept it as being a valid concern, and the growth of this as a status-achieving elevation in the commercial world is something that is only going to be a greater problem, hence why we are here.

Ms STINSON: Has the Bar Association specifically raised with the Attorney the assertion that there are people who are special counsel who are using the postnominal SC in the way that they publicly represent themselves—

Mr Picton: The abbreviation.

Ms STINSON: —the abbreviation SC—when they are actually 'special counsel' and not Senior Counsel? If that is the case and that is her understanding—and she is nodding so I will leave it to her to respond—and if the Attorney is saying that the Bar Association or others in the profession have drawn her attention to the fact that there are professionals, lawyers, who are in fact 'special counsel' but are representing themselves with the postnominal SC, which could be misunderstood by members of the public or even people within the profession to mean Senior Counsel, I would call on the Attorney to do something about that. It is clearly quite misleading.

The other thing I would say is that clearly in our legislation there is Senior Counsel. There is a definition of what Senior Counsel is, just as there is a definition of what Queen's Counsel is, so I fail to understand how someone could simply be let off the hook because there is no definition, or no commonly understood understanding, of what SC represents, that is, Senior Counsel. I call on the Attorney to investigate this matter further if she has had this drawn to her attention in light of the fact that it could well be misleading to members of the public as to who they are actually engaging for legal business.

The Hon. V.A. CHAPMAN: I do not know how I can make it any clearer. I think it is unwise for the member to continue to describe the use of the title as misleading. The position of the Bar Association is that it causes confusion as to what their status is and that that is a concern for them. I urge her to speak to them about that if she is not satisfied.

With Queen's Counsel, there is a rule. You cannot just simply use the royal insignia. You cannot use 'The Queen'. There are a whole lot of rules surrounding 'royal'. When the Royal Adelaide Hospital, for example, was allowed to use the title, it had to get The Queen's permission and also, in fact, even to discard it, which I had to look at when a former government under the Rann administration decided they wanted to call it the Marjorie Jackson-Nelson hospital. That lasted for a very short time because it was soon exposed as being completely without consultation and much concern was raised about it.

Leaving that aside, it was pointed out that even to take away the royal charter you needed The Queen's permission. Anyway, that bit the dust, so that was no longer an issue and the premier of the day announced that he would be retaining the name. Thank goodness for that, especially because he did not have The Queen's permission. So there is an envelope of protection around a Queen's Counsel or King's Counsel, but the confusion that arises out of somebody describing themselves as 'special counsel', as distinct from Senior Counsel, which is clearly solicitor versus barrister respectively, is one that is of concern. I accept that.

For the third time, I have no power to say who can use it or not. If the member were to say, 'Perhaps as a parliament we should look at saying it's only available for barristers,' what about the hundreds, perhaps thousands, of SCs out there, or 'special counsel', who say, 'Hang on a minute, I have been a 'special counsel' for 15 years'?

Mr Picton interjecting:

The Hon. V.A. CHAPMAN: I am just simply making that point. If they want to be able to say, 'I am Senior Counsel in my firm' and use that expression if they wish, then if the parliament says, 'We are going to make a decision about whether barristers get to use it or solicitors get to use it—

Ms Stinson interjecting:

The Hon. V.A. CHAPMAN: You can raise it if you like, but I am not going to be in the picking business of who gets to have the use of SC as an exclusive use. I accept that when you have special counsel and Senior Counsel in the arena it is confusing. If somebody comes along and says, 'I'm special counsel' and they think they must be one of those really important people who have been recognised, that is a problem. The member might like to advance that with the Bar Association if she is not satisfied that this has not caused a problem. I am satisfied.

Ms MICHAELS: Can I just ask for further clarification; I'm sorry to harp on the point. I understand the confusion between 'special counsel' and Senior Counsel that might be found by consumers of legal services, but I am not aware of a specific example of any 'special counsel' who uses the letters SC as postnominals after their name. Can you perhaps take that on notice and see if there are any specific examples of that?

The Hon. V.A. CHAPMAN: I am happy to do that, thank you member.

Clause passed.

Schedule.

Mr PICTON: I was going to ask one final question that piqued my interest in terms of the Attorney's discussion of the consultation that needs to happen around the word 'royal'. Has any consultation happened with the Palace in regard to the Attorney's plans in this regard?

The Hon. V.A. CHAPMAN: The Governor is the representative of The Queen in South Australia. He or she, depending on who holds the office, is the person who makes that determination. It is presented by the Attorney-General of the day to the Governor. Obviously, the Governor has a role with The Queen. I am not suggesting that he would act outside the request by the executive to consider that. There are certain reserve powers that the Governor has, but he or she, whoever holds that office, is the representative of The Queen. This is not a question of our saying that we are going to call this a new name or provide a new thing without recourse to the Governor. It is going to The Queen's representative for approval.

Mr PICTON: If I were a solicitor working in a law firm in South Australia and I were a specialist in Queensland law and I called myself Chris Picton Queensland Counsel, could I use the postnominals QC after my name?

The Hon. V.A. CHAPMAN: I would doubt that, but I do not know, I have never considered that question. I cannot imagine what benefit it would be. It would be like being SAC (South Australian Counsel) or a VicC. It does not seem to create any great status, and that is no reflection on Queensland.

Mr Picton: There is no status in QC?

The Hon. V.A. CHAPMAN: No, it is not a reflection on Queensland, in the sense of the place where you come from. I would be very surprised if that were allowed because of the QC and KC postnominals that are referred to. That is what I would expect. I suppose you could be Sydney Counsel and call yourself SC. It is the same sort of principle, some geographical status. I had not considered it, but I cannot see any benefit for somebody to geographically be—who would want to be a Tasmanian Counsel, for example. But I just make that point. I do not know, I have not considered it.

Schedule passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (20:19): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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