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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 (resumed on motion).

Mr PEDERICK (Hammond) (12:39): I rise to make a contribution to the Legal Practitioners (Senior and Queen's Counsel) Amendment Bill 2020. There has been some interesting debate today in regard to the bill. It sets out the process by which legal practitioners who have been appointed as Senior Counsel (SC) by the Supreme Court will be appointed as Queen's Counsel (QC).

The model proposed allows the Supreme Court of South Australia to appoint legal practitioners as SC in accordance with its rules. Any person who has been or will in the future be appointed by the court as SC may, if they choose, make a request to the Attorney-General for a recommendation to the Governor to be appointed as QC, or King's Counsel as the case may be at some time in the future. Upon the application being made, the Attorney-General must recommend to the Governor that the legal practitioner be appointed as QC and the Governor may, by notice in the Gazette, appoint a legal practitioner as QC.

Any existing or future SC who does not wish to apply for appointment as QC will continue to be known as SC and will be entitled to use the postnominal SC, and the order of precedence for SC appointed as QC will continue to be determined in accordance with the date and terms of his or her appointment as SC. The background to this goes back to 2008, when the former government, at the request of the then chief justice His Honour John Doyle AC, ceased the appointment of Queen's Counsel. This was following a consistent trend across Australian jurisdictions to discontinue the use of the QC designation in preference to the Senior Counsel (SC) title.

The appointment of SC in South Australia commenced on 12 May 2008, with the making of the Supreme Court Practice Direction Amendment No. 4 to be precise, and was governed by chapter 7, part 12, of the Supreme Court Civil Supplementary Rules 2014. The supplementary rules provide that applications for appointment as SC are to be considered by the Chief Justice in consultation with an advisory committee of three judges of the Supreme Court, as well as broader consultation more generally with other relevant bodies within the legal profession, including the Attorney-General.

In recent years, a number of jurisdictions have reinstated the use of the QC title following strong support amongst the legal profession. In 2013, Queensland reverted to the QC title, and in 2014 Victoria made changes to give SC the option of applying to the Attorney-General to be recommended for appointment as QC by the Governor in Council or to continue using the SC title. On 1 August 2018, the South Australian Bar Association (the SA bar) passed a motion at its annual general meeting expressing strong support for reinstatement of the QC or Queen's Counsel title.

The proposal was based on a similar model in Victoria, which allows SC to remain as SC or elect to be appointed as QC. A survey was also put to all members of the legal profession in South Australia by the Law Society. This survey yielded favourable results, with over 67 per cent of respondents answering in favour of there being a choice between Senior Counsel and Queen's Counsel. There were 843 respondents, and the survey was sent to all 3,444 admitted members of the society—for example, those who hold or have held a practising certificate.

The profession has supported an option to allow for an SC to be a QC on the basis that there was a widespread misconception amongst the general public, and it is the experience of some South Australian SC, that the SC title is less well known and regarded than the QC title, which is universally recognised. There is a concern amongst other Australian jurisdictions that the SC title places Australian SC at a commercial disadvantage when competing for international briefs, particularly in the Asia-Pacific region, where the SC title is less well known.

There is confusion amongst the public about the differences between the rank of SC that is conferred by the court and in-house counsel, who are self-described as 'special counsel' or SC. In early 2019, the government approved the reinstatement of the Queen's Counsel title in South Australia to give current and future SC the option of being able to apply to the Attorney-General to be recommended for appointment as QC by the Governor in Executive Council. This was then effected by a change in Supreme Court rules, which would not allow for the appointment of an SC or QC beyond 1 May 2019.

Between February and May, however, the Attorney-General wrote to the SA Bar Association advising of the government's position and inviting requests from Senior Counsel for recommendation by the Governor as QC: 17 Senior Counsel out of 39 appointed since 2008 sought QC or Queen's Counsel appointment. On 26 April 2019, the appointment of the 17 SC as QC was gazetted. Since that time, work has been done to implement a legislative model, detailed above, to allow both the retention of appointments of SC by the Supreme Court and the option for those who would like to use the QC title to request that of the Attorney-General.

The draft bill was provided to the Chief Justice, the Bar Association and the Law Society for comment. The SA bar has also briefed the opposition in regard to this proposal, without providing a copy of the bill, and we note that there seems to be initial support from the opposition. Currently, the bill is drafted to ensure the Attorney-General of the day must recommend to the Governor any Senior Counsel who requests to become a Queen's Counsel, and we need to have that debate in committee to see where it lands.

It is an interesting debate. I know that the member for Kaurna talks about the importance of this bill in the current state of affairs in South Australia. I do not think we are doing too bad a job, with the Premier running at 87 per cent popularity. I commend the Premier and our government for the work we have done in this state, working alongside Professor Nicola Spurrier, the Chief Public Health Officer, and also Grant Stevens, the Commissioner of Police. We are doing a great job here, but we still need to get on with the job.

I say to all members in this place that when we have had to get coronavirus or COVID-19 legislation through this house we diligently presented it and got it through to make sure that we keep South Australia on track. We have to keep on track because there are issues elsewhere in the country, noting the problems Victoria has. I note the assistance that we, other states and the Army are giving Victoria to stem the increasing testing rates of COVID-19 and the increase in people testing positive to COVID-19 in Victoria.

I salute all the Australian jurisdictions that are coming to the aid of Victoria because we are in a good place. Australia has been a place that has been well protected, partly because of its isolation as an island. We have seen ourselves as islands in the different states. I cannot remember the numbers but I think there was an over 90 per cent approval rating for Western Australian Premier Mark McGowan for the way he has manned the Western Australian borders. We have certainly started opening the gate to Western Australia, Northern Territory, Tasmania and Queensland, but we do have to be diligent.

We have just brought in some people on an international flight and we have had three positive tests. We knew that was more than likely to happen with people coming in from overseas. We are doing the diligent things we have to do in regard to the coronavirus. I reckon South Australia is the best spot not just in this country but in the world to be while this global pandemic is on as we see the problems unrolling around the world.

I will get back to this legislation because we still need to do the bread-and-butter work of the parliament and pass the appropriate legislation. In regard to the appointments of Senior Counsel, I want to reflect on the former member for Enfield who became a Senior Counsel in 2016, which was a rather interesting circumstance considering he was the Attorney-General of the day. There were some interesting comments made around that time. This is going back to November 2016:

The state's Attorney-General—

who was the former member for Enfield—

has been appointed to one of the highest positions within the legal profession—one for which, under the Supreme Court own rules, he has right of consultation…John Rau was one of six lawyers appointed Senior Counsel—the modern version of the title Queen’s Counsel—by Supreme Court Justice Chris Kourakis.

This article goes on to say that Mr Rau's new title came on top of other portfolios, including Deputy Premier, and stewardship of numerous portfolios, including child reform, planning and industrial relations.

There was quite a lot of speculation at the time that the former member for Enfield was going through the process of applying for a job after working in this place, and there was much speculation within the legal fraternity in this state that he wanted to head up the District Court when Chief Judge Geoffrey Muecke retired. From the opposition at the time, we certainly made it known that we thought it was an appalling and unacceptable process, given the role of the attorney-general at the time, Mr Rau, in the consultation process.

I want to make comment about some of the other people who were also named Senior Counsel at the same time. There was Graham Edmonds-Wilson, Scott Henchliffe, Emily Telfer, Simon Ower and Michael Wait. I want to reflect on Graham Edmonds-Wilson. I wrote a letter of congratulations to Graham because he is a product of Coomandook Area School like me. I do not get any letters after my name.

The Hon. V.A. Chapman: You became a shearer.

Mr PEDERICK: I became a shearer, the Attorney says; that is exactly right, so I only got 'S', I did not make it 'SC'—Adrian Pederick S.

The Hon. V.A. Chapman: Shearing champion!

Mr PEDERICK: 'Shearing champion', the Attorney says; I am not sure about that either. A lot of people would dispute that, Attorney.

The Hon. L.W.K. Bignell: The Attorney's dad was a shearing champion. He is in the Parndana hall of fame.

Mr PEDERICK: Absolutely! I do not think it matters where you come from in this place—and I have proved it with the many friendships I have made across the house—if you have worked in the sheds you always have a common bond. I want to again comment on Graham's ascension to SC and, speaking about shearing, I sheared for his family for many years. It just goes to show that not all of us rise to those lofty heights of SC coming from Coomandook Area School, but I certainly congratulated him at the time on getting there. He was always a very studious character, a very smart man, and I congratulate him on that appointment.

In a statement [at the time] the Courts Administration Authority said Mr Rau and his peers were the first SCs appointed under changes to the Supreme Court (Civil) Supplementary Rules (2014). Previously, SCs were selected by the Chief Justice—that responsibility is now held 'collectively' by the entire bench of the Supreme Court. 'Senior Counsel hold important positions in the legal profession,' the statement reads. 'Criteria for selection include legal learning, experience and skill in advocacy, integrity, availability to prospective clients and independence.'

I know there were a lot of questions asked by the opposition (which we were at the time) in regard to the former member for Enfield John Rau's availability for prospective clients considering what would have been an extensive workload as the attorney-general for the state. Be that as it may:

Lawyers seeking to be named SC must lodge written application with the Chief Justice’s chambers before June 30. Those who are unsuccessful are automatically reconsidered the following year. The rules name the Attorney-General as one of 16 individuals who receive, as soon as practicable after June 30, a list of SC applicants and a copy of their applications. They also name the Attorney-General 'or his nominee' as one of nine individuals involved in subsequent consultation regarding the nominees.

I am assuming the former member for Enfield consulted himself about his nomination. I know at the time there was some media interest seeking:

…comment from Chief Justice Kourakis as to whether Mr Rau received the list and copies of the application, and whether he was involved in consultation.

At the time, it was interesting and some of the members on the other side would have needed a map. The Labor Party, the government of the day, were in Coober Pedy for country cabinet, but John Rau gave a statement, and I quote:

'I am honoured to be appointed by the Judges of the Supreme Court,' he said. 'I look forward to continuing to work with the judiciary and the profession as Attorney-General.'

So interesting times. I note that the current Attorney, who was the deputy opposition leader at the time, made the following comments, and I quote:

'It's disgraceful...how can a man who has overseen the Gillman disaster and child protection reform even have the audacity to apply to be an SC?' she said. 'He is not 'available' and he does not have other key attributes which are part of the criteria...he's not 'independent', unless he's looking for a new job. 'It’s disgusting that his application was even considered and not put in the bin.'

The Hon. V.A. Chapman: It wasn't me who said that.

Mr PEDERICK: It wasn't you?

The Hon. V.A. Chapman interjecting:

Mr PEDERICK: Yes, the previous quote, that's right. Comments were made at the time that perhaps Mr Rau should have disqualified himself. So some interesting times, how people have been raised to the lofty profession of Senior Counsel, which with the passing of this legislation when it happens can go through to Queen's Counsel. Let's hope it is a fair way down the track yet before we need to change the postnominal to King's Counsel but, as we know with the royal family and life, it will happen one day.

Hopefully, this bill will straighten up and fix the roundabout of what happened when people were titled Senior Counsel, and it will bring them back to the role of Queen's Counsel. I hope we have speedy passage of the Legal Practitioners (Senior and Queen's Counsel) Amendment Bill 2020.

Debate adjourned on motion of Hon. V.A. Chapman.

Sitting suspended from 12:59 to 14:15

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