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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2020-06-30 Daily Xml
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Legal Practitioners (Senior and Queen's Counsel) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 17 June 2020.)

Mr TEAGUE (Heysen) (11:51): I am delighted to rise to make what will be some very brief remarks in support of the bill. It will insert a new part 7 in the Legal Practitioners Act, with the effect of providing a means by which those Senior Counsel who have been appointed by the court in the now familiar way may be appointed as Queen's Counsel. Mr Speaker will recall that since 2008 it has been the practice in relation to the appointment of silk in this state that the court do that. That was a reform during the time of the then chief justice, the Hon. John Doyle AC, QC, and that process carried on until recently.

It has been a matter of some considerable import for the profession over that period that the several hundred years old tradition of precedence at the bar that is signified by appointment as Queen's Counsel or as King's Counsel, as the case may be, is one that ought to continue to be recognised. As members will recall, Francis Bacon was the first to have been given that special precedence, being designated Queen's Counsel Extraordinary in 1597. He was styled King's Counsel in 1603, as I understand it, and we have since developed what has been a very proud tradition of Queen's Counsel and King's Counsel over the hundreds of years that have followed.

The bill will provide for those who would seek that designation to ask for the Attorney-General to do so and provide, importantly in my view, that in that case the Attorney-General must act in accord with that will for the senior practitioner to be designated QC or KC, as the case may be. That is so as to avoid any reinstatement or any introduction of political favour in an appointment process that ought to be transparently and demonstrably independent of any political process.

We know that the process by which senior members of the profession make their applications is one characterised by transparency, by consultation and by a process in which the applicant for silk—the applicant to be recognised as Senior Counsel—is recognised by their peers and, relevantly, by the judiciary and other interested members of the profession so that there can be the utmost confidence in the process. I note with some regret that there has been only one recent exception to that that comes to mind—that of the somewhat belated appointment of the former attorney in late 2016.

That historical journey illustrates that the usual process in this regard is one of ensuring that there is a high level of transparency, that there is a great deal of confidence among the profession and the judiciary and those who apply and that they are appropriately recognised. The point I want to emphasise in all of this is that this is indeed a tradition many hundreds of years old and that there is an undoubted level of prestige associated with the designation.

However, it needs to be really emphasised and made very clear that the profession, and the particular aspects of advanced advocacy that are recognised in those who are these days appointed QC, is a very practical one. It recognises that that advocate commands the respect of clients and professions, the judiciary, alike, sufficient that they would attract work of the relevant complexity and seriousness, so much so that it is the normal course for Senior Counsel not to appear without a junior for the most part.

This highlights again the nature of the work that those counsel put up their hand to attract. They say, 'I am ready to be a senior practitioner who is going to attract this most complex and difficult work and I seek recognition for that purpose.' Yes, there is prestige associated with it, but there is also a great deal of responsibility and, if I might say, practical commercial risk in taking that step because one needs to continue to command the work that the designation dictates.

We know that over those hundreds of years the title of QC and KC has come to be well recognised. There is a degree of concern among the profession, and rightly, that the designation SC, a more modern phenomenon, does not carry quite the same level of recognition, particularly globally, so in that respect there is a degree of recognition of the brand, if one will, about that matter. Being able to, if the practitioner wishes, return to the designation of QC will permit that wider recognition of a level of seniority.

The observation has been made as well that to some extent it has come to be a practice among law firms to bestow on practitioners who might not be a partner of a firm but might be a senior lawyer within a firm with a designation of 'special counsel'. That is well understood around the profession. I do not know that it is necessarily a title that is universal. I have seen that it has come into use in the last decade or so. It is certainly not something that those in the profession would ever confuse one for the other, but I can understand that there might be the potential for confusion out there in the wider market.

Suffice to say, the emphasis here really ought to be, as always, on matters of substance rather than matters of form. As a proud member of the profession myself for over 20 years now, and the last 15 years at the bar, I can say without any shadow of a doubt that those who apply and are appointed as SC and as QC at the bar are really very clearly those who have demonstrated their capacity to take on those roles. For those who would wish to seek the designation in the future by reference to this bill, I certainly understand and respect that, as I do respect those who may not wish to take advantage of the opportunity for the designation. With those brief words, I commend the bill to the house.

Mr PICTON (Kaurna) (12:02): I indicate that I am the lead speaker for the opposition. I rise to speak on this interesting piece of legislation, the Legal Practitioners (Senior and Queen's Counsel) Amendment Bill 2020, which I note, as we start this parliamentary week, is the second highest priority bill for the government to progress in this parliament. At this time of a global pandemic, at this time of economic shock waves, the second highest priority bill for the parliament this week is about the title of Senior Counsel and Queen's Counsel at the bar, which is a pretty incredible decision by the government, that this is of such high priority for our state parliament to be considering at this time.

As I said, I am the lead speaker and I am representing the Hon. Kyam Maher, our shadow attorney-general. This is a bill on which the opposition will be considering further its position between the houses for its final position, but this is something where the Attorney-General has said a lot of things about this bill that do not always stack up, and she has failed to say others that have a great deal of importance to this issue. The Attorney's first interesting comment was that this is an issue that is apparently not a priority for the government, even though, of course, they are now listing it as a priority.

Despite this assertion, here we are debating this bill in the parliament as their second priority for the week. This does not happen without the government deciding to give it priority. In the other place they are debating a request from the Chief Magistrate to help with court efficiency that first came before the parliament in 2017. From 2017 to now, that has been waiting to be progressed. Things that make our courts more efficient are left to rot for two or three years with this government, but this current bill about the title of Senior Counsel and Queen's Counsel has progressed in only a matter of months.

It is clear where the government's priorities lie, regardless of the Attorney's assertions. For something that is apparently not a priority, according to the Attorney, it is surprising that she made the journey from her ministerial suite to personally brief the Leader of the Opposition in the other place and our shadow attorney-general on this issue.

I understand that it is only the second time that she has personally briefed the opposition shadow attorney-general on a piece of legislation. Most of the bills that we have been dealing with, including the COVID emergency pieces of legislation, have been the subject of video meetings with staffers and officials, but for this piece of legislation the Attorney-General took pity on this apparently low priority bill and gave it her highest priority by coming over and giving it her personal treatment. We will be expecting other similar personal briefings from the Attorney on other supposedly low priority bills in the future. In the Attorney's second reading explanation, she also said:

This society actually undertook a survey of all of its members in the legal profession in response to the question of whether there should be an option for a Senior Counsel to become a Queen's Counsel. An astonishing 67.26 per cent of the respondents answered in favour. I am advised by the Law Society that there were 843 respondents of the 3,444 admitted members of the profession.

This bill offers choice. It reflects a clear position of a majority of the legal profession in South Australia...

I now understand why the Attorney was overlooked for the role of treasurer, given that some 843 people out of 3,444 admitted members of the profession is not a majority; it is 24.4 per cent, or less than a quarter. Of the less than a quarter who responded, 67.26 per cent—that is just over two-thirds—were in favour. I discovered that two-thirds of one-quarter equals one-sixth, so in that case the total number who expressed their positive support came in at about 16 per cent of admitted members. That means that over 80 per cent of members of the profession are either opposed or have not expressed a view.

The Attorney ran a process last year and offered those who had been made Senior Counsel since 2008 the chance to convert their titles to Queen's Counsel, such is the priority she has given to this very important issue—a landmark issue for her. Thirty-nine people were eligible and 17 of those 39 applied. That is less than half, so just 43.6 per cent of those who could change in a heartbeat decided to jump from SC to QC. So, when the Attorney says that this bill reflects 'a clear position of a majority of the legal profession', you can have about as much confidence in her assertion that this is apparently not a priority for the government: put simply, little to none. Neither claim stands up to scrutiny.

Claims about low priorities ring very hollow when the government is seeking to have a matter voted on in parliament. The Attorney made these wobbly claims when she has letters from the Chief Justice of the Supreme Court that express his continued objection to her proposal and representing the views of the court as well. This is not the first time we have had very serious letters from the Chief Justice to the parliament via the Attorney-General expressing direct opposition of the Chief Justice and the court to the Attorney's own views.

I distinctly remember that happening on the occasion of her Court of Appeal bill as well and now we have it again here where the Supreme Court is voicing its very strong opposition to the Attorney on this matter. It is not just any member of the Law Society who happened to read the newsletter or respond. This is the view of the Chief Justice, the highest judge in South Australia. The Attorney-General did not think it was worth repeating those views in the chamber because it is not her view.

As we have seen with FOI legislation and a raft of other matters, the Attorney is somewhere between economical and obstructionist with information about the views of stakeholders when it comes to legislation. In this case, the Chief Justice made a specific point of requesting that his correspondence be provided to the opposition and to the crossbench. It speaks volumes that the Chief Justice had to demand that our highest law officer share his expert written views about her legislation proposals with other legislators.

The letters from the Chief Justice even suggested constitutional issues and that her proposal would weaken, and I quote the Chief Justice, 'the independence of both the legal profession and the judiciary'. These comments, whilst coming from just one member of the profession, at least warrant consideration and a response from the government.

This bill impacts a very small group within a small subsection of a specific profession in our community. It is not just lawyers. You do not just have to be a lawyer to apply and you do not just have to be a barrister within the ranks of lawyers for this to apply: you need to be a lawyer who is a senior barrister and who has been recognised by the court to be affected by this bill. This is a very small subset of a profession that we are dealing with in this legislation. That said, this measure may also affect the bills that are sent to a small number of customers after they engage a senior barrister to act for them.

In regard to what exactly the bill is attempting to do, it proposes three new clauses and some transitional provisions for the Legal Practitioners Act 1981. The first new proposed section would allow the Chief Justice of the Supreme Court to appoint persons in the legal community—namely, barristers—to the position of Senior Counsel. This is interesting, as the Chief Justice does not require the permission of the Legal Practitioners Act nor the permission of parliament to make such an appointment. The Chief Justice already has the right to do this through the rules of the court, which are made by the justices of the Supreme Court.

The second new clause would give the Attorney-General a direct role to play. Once a person has been appointed as a Senior Counsel, they can then apply to the Attorney-General to request that they be appointed as a Queen's Counsel instead of a Senior Counsel. In short, they are asking for a title change. Upon such a request, the Attorney-General must recommend to the Governor to appoint them as a Queen's Counsel. This is then granted by the Governor and a notice appears in the Gazette. At the stroke of a pen, the person is no longer a Senior Counsel but a newly minted QC.

The third clause states that the Chief Justice can revoke the appointment of a Senior Counsel or a Queen's Counsel, and this must be published in the Gazette. It also states that a person who is a Senior Counsel or a Queen's Counsel can resign from their appointment by notifying the Chief Justice, who must also publish this in the Gazette. The bill also contains transitional provisions, which recognise previous appointments of Senior Counsel and Queen's Counsel before the commencement of these new provisions. This is to allow any current Senior Counsel to make an application to the Attorney-General to be known as a Queen's Counsel after the bill is enacted.

The Attorney-General stated in her second reading explanation last sitting week that this is an important reform but then stated:

…it has not been a bill that was the immediate priority of the government, we have had sustained advocacy from the relevant parties over the last two years.

This sustained advocacy has been in the form of the South Australian Bar Association and, to a lesser extent, the Law Society. We have no qualms with lobbying from interested parties, but what is objectionable is the government giving serious priority to this bill at this time and claiming that it somehow fell onto the Notice Paper without them having anything to do with it, that it is not them who have put this as the second priority for this sitting week. We are in the midst of a worldwide pandemic with spiralling unemployment, and many families are not sure what the future holds. But do not panic: the government is here to help with a bill to change the titles of a very small section of the community from Senior Counsel to Queen's Counsel. Well, that will help.

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

Whether you are a Senior Counsel or a Queen's Counsel, that appointment permits you to charge a premium for your time because you are considered eminent in your field by your peers. I have to say that we are blessed with some very learned Senior Counsel in this state, people who have well earned the title of Senior Counsel or Queen's Counsel. They are well able to charge a premium for that because of the significant skills that they bring before the legal profession and before the courts.

But, from a party that espouses free markets and market forces, you would expect more faith in how the market will determine whether or not a person is a QC or an SC. I would have thought that people would look at the merits of that person as opposed to whether they had a Q or an S in their title, particularly given the vast majority of their clients would know exactly what those titles mean and know exactly what they are paying for in terms of the ability of those barristers.

I have to also think that some of the highest senior barristers around the country, particularly those in New South Wales, are SCs, and the merits of an SC are well understood across the country. The Attorney-General has said this reform is important because it is, and I quote, 'a key tenet of our justice agenda to build the capacity in our legal sector in this state'. That is interesting because I thought it was a low priority, but now it is a 'key tenet' of their justice agenda. I am confused as to whether or not this is a key priority.

Saying that this is a key tenet of their justice agenda comes from the Attorney-General, who shut down the Welfare Rights Centre after almost 30 years. This is from the Attorney-General who just stripped $2.3 million from the Victim Support Service that helps people through traumatic court experiences. This is from the Attorney-General who left court efficiency measures wallowing for nearly three years. Why? Because when the Attorney-General talks about building capacity in our legal system, I do not think you can believe her as much as you can as to whether this is a high priority or a low priority.

What evidence is there that allowing the use of the Queen's title would add to the profession? The government have said they have undertaken no modelling. They have admitted that there has been no modelling undertaken. They have not collated and compared the earnings of SCs and QCs in this state. This is not the first time the issue of Senior Counsel versus Queen's Counsel has arisen in this state or others. In 2008, the former Rann Labor government, in consultation with the former chief justice, the Hon. John Doyle, reached an understanding to adopt the use of the title of Senior Counsel instead of Queen's Counsel.

That was back in the time when government consulted, talked with and reached understandings with the Supreme Court Chief Justice, which does not seem to happen these days. The then chief justice indicated that the Supreme Court would amend its own practice directions to reflect these changes and the government revoked the regulations appointing Queen's Counsel. These changes achieved the reinforcement of the independence of both the legal profession and the judiciary. Since that time, for over a decade, the process has operated in this way without government or parliamentary intrusion into what is and should be a matter for the legal profession.

None of these issues mean that we could not and should not reconsider our position, but they do raise serious questions about the Attorney-General's conduct in this matter. The Attorney-General argues that other jurisdictions have reinstated the usage of the title Queen's Counsel. Well, the facts can be revealing. Only two out of a possible eight jurisdictions have sought to reverse the trend back to Queen's Counsel, they being Queensland and Victoria. The remainder all retain usage of the title Senior Counsel, with no plans to alter that position. New South Wales, the oldest and largest legal profession in the country, has used the title Senior Counsel since 1993. I think even our previous royal commissioner for the Murray-Darling Basin was an SC, whom the Attorney-General of course knows well.

In 2013-14, the New South Wales Bar Association undertook a comprehensive review of this very question. It decided to keep the title of Senior Counsel and continues so to this day. Arguments raised in support of a return to Queen's Counsel all seem to suggest that if you are not a Queen's Counsel you are somehow disadvantaged. The argument that the title of Senior Counsel commercially disadvantages those counsel seeking to work interstate or overseas certainly has some questions about it. Both Singapore, since 1989, and Hong Kong, since 1997, use the title Senior Counsel and they are legal markets that are open to Australian barristers.

To some in the community, the Queen's Counsel may be seen as anachronistic; however, I note that we have many anachronistic hangovers in our society. The Attorney has failed to produce evidence that Senior Counsel are not getting the briefs because they cannot compete as Senior Counsel. The evidence appears anecdotal at best.

Labor will not be voting against this bill in this house but is carefully considering our position when it is debated in the other place. Notwithstanding this, the government and the parliament should be focused on more important matters of state at this time for debate. More time and resources should be spent addressing public transport, jobs, the economy, health and infrastructure, for instance. The government should consider progressing multiple matters it has promised to act on in the past two years.

You have to question how much time and resources the government and the Attorney-General have spent on this piece of legislation for a change of one word in the title of a very small number of people: public servants from the Attorney-General's own department, the Office of Parliamentary Counsel, members of parliament, their staff and, of course, the Attorney-General, who has devoted her own time to this subject. I shudder to think of the billable hours for this matter, and so should the Attorney-General. There are more important items that should be on the government's justice agenda and we encourage the government to bring them on.

Ms BEDFORD (Florey) (12:21): This may not appear to be a very big issue for most of my constituents; however, I do want to make a brief second reading contribution to this bill. The bill strikes me as a rather boutique issue which could have better been handled without coming to this parliament. To be frank, whether a lawyer can get the honorific title of QC or SC is something pretty much irrelevant to the daily lives of the 25,000 or so people I represent in the electorate of Florey, unless they happen to be charged with a matter or a serious offence that is progressed to the Supreme Court. Most of my constituents would not really be able to afford either a QC or an SC without the help of legal aid.

This bill will not make it easier to pay the mortgage or the next electricity bill. It will not make it easier for them to find secure and well-paid work. It will not help their children to get a good education. It will not help them when they need acute care at the local public hospital or to be advanced up the queue for long-overdue elective surgery. In short, this bill is not time-sensitive, to my knowledge, and it is not an issue for South Australians at a time when we confront the dual challenges of a once-in-a-generation pandemic and the first recession in 30 years.

The best that can be said is the timing of this bill is curious and it perplexes me how this has become a priority for the parliament. We have many issues of great importance to debate and, as I understand it, this proposal still does not have the support of the Chief Justice or the judges of the Supreme Court. It seems rather remarkable we are now debating a legislative proposal that will affect about 30 or so individual barristers when the issue could just as easily have been dealt with—and has in fact been dealt with—in the Supreme Court Rules.

I also want to raise some concerns about this proposal. Firstly, and the Attorney-General may wish to clarify this in committee, I understand the proposal to allow SCs to convert their titles to QCs is a proposal not supported by the judges of the Supreme Court as a matter of principle. Secondly, I note the Chief Justice, on behalf of the judges of the Supreme Court, has also cogently articulated constitutional and other concerns about the proposal, which would potentially trespass on the separation of powers.

I would like to quote from the Chief Justice's letter of 2 October 2018 and published, I think, in part or in full in InDaily on 17 January 2019. It is addressed to the Attorney-General and it is headed 'SA Bar Association proposal for the appointment of Queen's Counsel'. The letter states:

I refer to your letter of 7 September 2018. I thank you for giving me the opportunity to put my views on the proposal of the South Australian Bar Association… after I informed you of my opposition to it. The SA Bar has asked the Judges to inform it in writing of their opposition to the proposal and their reasons for it. Accordingly, I have forwarded a copy of this letter to Mr Hoffmann QC.

The Judges oppose the proposal. When in 2008 the government of the day, at the request of the then Chief Justice, the Honourable John Doyle, agreed to end the practice of appointing Queen's Counsel in the exercise of the prerogative, the independence of both the legal profession and the judiciary was strengthened. Restoration of the title will weaken it.

The SA Bar's proposal (the proposal) assumes that if the Executive were to adopt the proposal, the Judges of the Court would continue to make appointments of Senior Counsel and not require an undertaking from Senior Counsel not to seek an appointment as Queen's Counsel. The Judges have expressly refrained from considering their response should the proposal be adopted by the Executive. It should not be assumed that if the SA Bar's proposal were adopted that the Judges would facilitate it. The Judges of the Supreme Court cannot be co-opted by others into a scheme of their making.

In the past appointments to the office of Queen's Counsel have been governed by a regulation made by proclamation in the exercise of a prerogative power which is attached herewith. That regulation did not allow a direct application by individuals but required the appointment to be made on the advice of the Chief Justice. The Judges will not give any such advice to the Governor through the Attorney-General. It would be a curious development if this prerogative, which is so intrinsically connected to the administration of justice, were to be exercised not on the recommendation of the Judges but on the application of an individual or his or her professional association.

The appointment of Queen's and King's Counsel has its genesis in a time when the Crown was much more directly involved in exercising judicial power and influencing the decisions of the Judges of its courts. They were appointed to give advice to the Crown on matters including decisions in capital cases and the controversial exercise by the Crown of a purported prerogative to dispense with the Acts of Parliament. Appointment as King's and Queen's counsel constituted a permanent general and exclusive retainer and until 1920 it was necessary for King's Counsel to obtain a licence to appear for a defendant in a criminal case.

In contrast, the modern obligation of Senior Counsel is to generally be available to accept a brief from whosoever chooses to instruct them. Indeed the purpose of the undertaking of practice at the independent Bar, which my predecessor the Honourable Len King first required of Queen's Counsel, and which the Court now requires of Senior Counsel, is to ensure that Senior Counsel are not only, or primarily, available to clients of particular law firms.

I have also attached herewith a copy of the standard form of Letters Patent by which appointments to the office of Queen's Counsel were made.

It can be seen from the Letters Patent that from a 21st century perspective the office of Queen's or King's Counsel is an anachronism. The Letters Patent purport to grant 'Our said counsel' precedence in rights of appearance before the courts. The courts would not now ever recognise the Executive's bestowal of an order of precedence on counsel of its choosing in judicial proceedings.

The independence of the judiciary is a cornerstone of liberal democratic government. It is well recognised that an independent legal profession promotes access to justice for the community as a whole. The independence of the legal profession also buttresses the independence of the judiciary. In D'Orta-Ekenaike v Victorian Legal Aid McHugh J observed:

'The independence of the Bar in large therefore secures the independence of the judiciary. It seems highly unlikely that public confidence in the administration of justice could be maintained at its present level if the administration of justice in all its aspects was a government monopoly.

Hence, there is an undeniable public interest in the maintenance of an independent Bar that, within the limits imposed by the adversarial system of justice, assists in achieving an efficient and economical system of justice.'

The appointment of Senior Counsel recognises their pre-eminence at the Bar and their leadership of the profession. For that reason the Rules of this Court allow higher rates for Senior Counsel. Appointment by the Judges, after extensive consultation, provides an objective indication to the community of the pre-eminent members of the independent Bar. In that respect the appointment of Senior Counsel goes some way to correct the information asymmetry in the legal services market on the relative skills of barristers.

The connection between the appointment of Senior Counsel and the costs rules made pursuant to the Supreme Court Act 1935 (SA) provides a statutory basis for Part 12 of the Supplementary Rules of this Court. The appointment of Senior Counsel by Supreme Courts in Australia is of relatively recent origins. In this State it commenced with the making of a Supreme Court Practice Direction (amendment No 9) of 12 May 2008. The Rules for the appointment of Senior Counsel made by the Supreme Courts of some States and Territories, and the contemporary constitutional independence of the Courts from the Executive, raise the question whether the Crown prerogative to appoint Queen's Counsel has been abrogated.

That constitutional question aside, in light of the modern developments, the conferral of a prerogative title on persons already appointed as Senior Counsel by this Court pursuant to its Rules signifies nothing more than the conferral of Executive favour. It cannot and will not confer any precedence in the courts which the courts would not otherwise give. It can confer no right to a higher taxation of costs than that which pertains to the office of Senior Counsel.

I make the following observations about several of the arguments in support of the proposed scheme made to the Notice of Motion put to the Annual General Meeting of the SA Bar.

The complaint that the post-nominal SC is not as well-known as the post-nominal QC is difficult to accept. The Judges have not noticed any such thing. Senior Counsel appointed since 2008 regularly appear in the Full Court and Court of Criminal Appeal as lead counsel. Solicitors seem to have no hesitation in briefing Senior Counsel to appear against Queen's Counsel. It is not unusual for the leaders to be a Senior Counsel on both sides of the bar table. All of that is not surprising because there are many more Senior Counsel actively practising at the SA Bar than there are Queen's Counsel. There are a number of Judges of the District Court who were Senior Counsel before their appointment. Justice Doyle and I were both Senior Counsel before our appointments to this Court.

Solicitors and counsel have had since 2008 to explain the significance of the title Senior Counsel. There is no reason to think that South Australia's legal practitioners have not been up to the job of explaining both the change of nomenclature and the important matters of principle underpinning that change, in the decade since they were made. Moreover, in the event of a change in the gender of the sovereign on any succession, a similar explanatory exercise is required.

The Judges have not seen any evidence that litigants have been misled by legal practitioners in solicitors' firms who describe themselves as special counsel.

As to the perception that an 'SC' is in some way perceived as a lesser appointment, that is not supported by the experience in New South Wales. As I understand it, admittedly on the same sort of anecdotal evidence on which the argument put in the Notice of Motion relies, in New South Wales, the title of QC, is more often seen as quaint than superior.

Contrary to the implication in the Notice of Motion, there is no Australia-wide trend to return to the office of QC. In recent times Victoria and Queensland have reverted to the past practice but New South Wales has not. I am not aware of any evidence that Senior Counsel in New South Wales have more difficulty in obtaining briefs nationally or internationally than Queen's Counsel in Victoria and Queensland. The office of Senior Counsel appointed by the courts remains the position in Tasmania, Western Australia and the Territories. Hong Kong and Singapore, which are international centres of commercial litigation, appoint Senior Counsel. In Hong Kong the appointment is made by the Supreme Court and in Singapore by the Academy of Law.

You refer in your letter to the possibility of the direct appointment of Queen's Counsel on the Attorney-General's recommendation of persons who have not been appointed Senior Counsel. I was not aware before your correspondence that you were considering such a proposal. For the following reasons I counsel against it.

First, if the proposal is that the Attorney-General himself or herself will personally assess applicants for Queen's Counsel, then serious questions will arise as to the credibility of the appointment. I understand that for some time in New South Wales, when the Attorney-General reserved the right to make appointments beyond those recommended by the Supreme Court, some silks came to be referred to as 'political silks' to signify that the title was not truly deserved.

Secondly, if the proposal is that the Judges will be consulted by the Attorney-General before making a recommendation to the Governor then, again, it should not be assumed that the Judges would participate in such a scheme. If the proposal is that the Attorney-General will consult with the SA Bar, the Law Society, or both professional associations, I warn that, without the involvement of the judiciary, doubts may still arise as to the merit of the particular appointments. It is my experience that quite strong differences can arise on the merit of some applicants. Resolutions of those controversies by the Judges are generally accepted because of the authority of the Court. Decisions made on contested applications by the Attorney-General, the SA Bar and the Law Society will not carry the same authority. They will be both contestable and controversial. Such controversies have arisen in New South Wales and Victoria where the appointment process is controlled by the Bar itself. It is difficult to understand why a government would wish to embroil itself in public controversy on matters which properly pertain to the administration of justice by the courts.

I note your invitation to the Judges' to comment to you about the current selection process for Senior Counsel. It is a process which is in the control of the Supreme Court. The Judges have recently consulted with the profession, and other courts, and have reformed the process. The process is not perfect but it is better than any alternative. The amended Rules have been promulgated. They are enclosed.

I wish to emphasise the importance of this matter to the Judges. It is a matter on which I, as Chief Justice, would feel bound to make public comment.

The letter is signed by the Hon. Chris Kourakis, who is the Chief Justice.

The letter is detailed and contains very strong language. It also raises very legitimate questions which I believe, for full transparency, the Attorney-General should answer before this house, or indeed the other place, determines whether or not to support this bill. Disagreement, perhaps even antagonism, between the judiciary and the executive, particularly the first law officer of the executive government, should rightly be a concern for this house. I, for one, am very concerned that passage of this bill could exacerbate this, and I look for the Attorney to provide assurance on this in the committee stage. The Chief Justice's correspondence raises many questions, and I will list some of them now:

Does the government agree restoration of the title of QC will weaken the independence of the legal profession and the judiciary, and how does this bill address those concerns?

Has the Attorney-General given any regard to the statement the Supreme Court will not be co-opted by others into a scheme of their making?

Does the Attorney-General concede the use of the prerogative power to appoint Queen's Counsel or King's Counsel without the input of the judiciary would be a 'curious development', as the Chief Justice states?

Does the Attorney-General accept the role of Queen's Counsel or King's Counsel is to provide counsel to the monarch and is intrinsically different from the role of Senior Counsel, as outlined in the rules of the Supreme Court?

How does the Attorney-General respond to the Chief Justice's comment that the title of QC or KC is an anachronism?

How does the Attorney-General respond to the statement by the Chief Justice, 'The courts would not now ever recognise the executive's bestowal of an order of precedence on counsel of its choosing in judicial proceedings'?

Can the Attorney-General share what advice she has received which addresses the constitutional validity of this bill having regard to the Chief Justice's comment there is a legitimate question as to whether the Crown prerogative to appoint Queen's Counsel has been abrogated?

Can the Attorney-General guarantee to this house this bill will not be held constitutionally invalid?

Can the Attorney-General outline her response to the statement by the Chief Justice, and I quote, 'The complaint that the postnominal SC is not as well known as the postnominal QC is difficult to accept'?

Can the Attorney-General respond to the Chief Justice's point that appointment as a QC in New South Wales is seen as 'quaint rather than superior'?

How many commonwealth jurisdictions outside Australia retain the title of QC rather than SC?

How many Australian jurisdictions still confer the title of QC?

Can the Attorney-General indicate what the government would do if the judges of the Supreme Court refused to cooperate with the scheme established by this bill, if passed?

If the Supreme Court imposes an obligation on new SCs not to seek the title of QC, would this not render this legislation entirely moot and inoperative as anyone seeking such appointment would, by virtue of breach of undertaking, be likely struck off the list of SCs and therefore no longer be eligible for conferral of the title of QC?

Can the Attorney-General provide assurances to the house, where an application made for conferral of the title of QC on an SC is opposed by the Chief Justice, on consultation under this bill, that the government would not proceed to make that appointment?

It happens I do not have a strong view one way or the other on what the title should be for a legal practitioner of this rank. I can see the merit of both arguments. But I am very concerned about a proposal which may exacerbate antagonism between the judiciary and the executive. I am very concerned about a bill which may be constitutionally invalid and I am very concerned about a bill which, if the Chief Justice's words are to be taken at face value, will be rendered inoperative in practice anyway.

I have spoken to many legal acquaintances whose opinion I value and it would be fair to say there have been many differing views, some held very passionately and some who might have raised the gender issue but did not. However, I believe there is a disparity that could warrant scrutiny in this particular area. My understanding is that there are 38 men and six women, both QC and SC, at the bar in South Australia. Again, that is another curious aspect of this bill.

In the end, though, what I personally cannot understand is why we would maintain a system with two different types of titles. But again, perhaps we will all come to understand this in the committee stage. With those remarks, I look forward to being engaged in that stage.

Debate adjourned on motion of Mr Pederick.

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