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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-09-10 Daily Xml
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Bills

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

Second Reading

Adjourned debate on second reading.

(Continued from 2 July 2020.)

The Hon. K.J. MAHER (Leader of the Opposition) (16:14): I rise to speak on this bill and indicate that I will be the lead speaker for the opposition. In the other place, there was much debate on this bill, and given the time that has been spent by the parliament so far you would be forgiven for thinking this was a grave matter of importance for the governance of the state.

Members interjecting:

The PRESIDENT: I would ask members to take their conversations out of the chamber if they could and give the Leader of the Opposition the due respect that he deserves.

The Hon. K.J. MAHER: As I was saying, you would be forgiven, given the time and effort that has been spent on this bill so far, for thinking that this was a matter of grave importance for the running of this state. It is our contention that, given the things that we have to deal with at the moment, this issue is not of that great an importance. We have had legislation on our response to the COVID-19 pandemic that we are waiting to debate in this place after briefings have taken place. We have legislation that is about the protection of our community, things like serious repeat-offender sentencing, things like guilty-plea sentence reduction that are apparently not as important as what lawyers called themselves that this bill deals with. It is our contention that there are more important things for us to be dealing with.

This bill is trying to fix an apparent problem between some barristers and the judiciary. The importance that the government attaches to this was demonstrated by the fact that the Attorney-General herself came to Parliament House to brief the opposition on this bill and that is if not the only time then one of the very few times that has occurred during the course of this parliament that the Attorney-General herself has briefed the opposition on an Attorney-General's bill.

The Attorney-General's reasoning in support of this bill is as flawed as it is misguided. The Attorney-General has said in the other place that it will strengthen the legal profession in this state, especially the relationship between the bar and the bench. It will remove confusion that exists between the use of the title Senior Counsel awarded to eminent barristers and Special Counsel adopted by experienced solicitors in a particular field of law in legal firms around the country.

She has argued that a legislative model is better than any other solution or model, and that there is strong support from the legal profession. I think the quote is that it is a 'unified position of the bar and the Law Society'. The Attorney-General has argued that value is added to the profession by the reintroduction of the title Queen's Counsel, giving the next generation of would-be counsel a chance. These are all things the Attorney-General has said are reasons and necessities for the passage of this bill.

There is no actual evidence being provided to this parliament or to the opposition that there are tangible benefits to barristers in relation to the passage of this bill. It is a good argument that this is a matter that should be left to the legal profession to sort out. During any scheme change, such as the postnominal title of QC or SC, there is always a transition period and in this state we moved to the title of Senior Counsel back in 2009. So, as in most of the other jurisdictions that have made similar moves, there exists practitioners who were appointed Queen's Counsel prior to that date.

That is also the case in other jurisdictions where they have moved to using postnominal Senior Counsel instead of Queen's Counsel. The Queen's Counsel postnominal is a title that simply reflects that they were appointed at a time earlier than societal shifts in thinking about what a modern judiciary should look like and what titles they should adopt. Yes, the opposition accepts that Queensland has relinquished the use of the term Senior Counsel and resurrected Queen's Counsel as their preferred postnominal. But, quite frankly, so what? That does not mean we have to follow what Queensland does.

The Attorney-General in the other place said that she did not think the New South Wales model was a 'suitable model'—but it is one that works. New South Wales is the biggest state with the biggest economy. They have had the scheme of appointing only Senior Counsel for almost 30 years.

Another argument made by the Attorney-General is an economic one. The argument goes something along the lines of that counsel who are Senior Counsel are not getting the range of briefs because they are hamstrung by their title; that is, Senior Counsel. We have asked a number of times of the Attorney-General for evidence to support that. The Attorney-General admitted in the other place under questioning that there was no actual economic modelling to suggest anything of the sort that there is evidence that there is an economic benefit by reintroducing the postnominal Queen's Counsel.

At best, there are anecdotes, stories and things one hears, the sort of unattributed, uncorroborated stories that would not be acceptable in any court of law as evidence. Even then—even then—with these anecdotal stories, the government has not provided any actual stories or things that can be relied upon. It is apparently out there, but it cannot be cited. I repeat myself when I say that this parliament ought to be focused on more pressing matters, not on what lawyers want themselves to be called.

This bill proposes three new clauses and some transitional provisions for the Legal Practitioners Act 1981. The first proposal is a new section that would allow the Chief Justice of the Supreme Court of South Australia to appoint persons in the legal community to the position of Senior Counsel. This is interesting, as the Chief Justice does not actually require the permission of the Legal Practitioners Act nor the permission of the parliament to make such an appointment. The Chief Justice already has the right to do so and has done so 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 a Senior Counsel, under this new and completely unnecessary legislative scheme they can then apply to the Attorney-General to request that they be appointed as Queen's Counsel instead of Senior Counsel. Under the second new clause, upon request by a Senior Counsel the Attorney-General must recommend to the Governor to appoint them as a Queen's Counsel. So, at the stroke of a pen, the person no longer is an SC but a newly minted QC. This is then granted by the Governor, with a notice that appears in the Gazette.

The third new clause states that the Chief Justice can revoke the appointment of a Senior Counsel or a Queen's Counsel and that this must also 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 publish this in the Gazette. Again, these are things that are already readily available to the Chief Justice and can be set out in the rules of the court.

This bill also contains transitional provisions that recognise previous appointments as Senior Counsel and Queen's Counsel before the commencement of these new provisions. This presumably is to allow any current Senior Counsel to make an application to the Attorney-General to be known as Queen's Counsel, if this bill passes.

The Treasurer, in moving the bill in this chamber, has not really provided any more cogent reasons for supporting the bill than the Attorney-General did in the other place. Relying on the second reading explanation that was given in the other place, he merely restated without any actual reasons being given as to why this is necessary. So we are left with the following reasons why we ought to be supporting the bill, reasons that the opposition maintains are pretty unconvincing.

Firstly, there is the argument that the bill offers choice and gives greater flexibility to a person appointed Senior Counsel to elect to be known as Queen's Counsel. This choice is really an elusive concept and comes back to the flawed economic argument the Attorney-General has tried to prosecute in support of this bill without any actual evidence.

It comes back to the assertion that Senior Counsels in South Australia are somehow disadvantaged by not being able to call themselves Queen's Counsel and thereby do not compete on an even playing field with their interstate counterparts, notwithstanding, as I mentioned earlier, that in the biggest state with the biggest economy, New South Wales, for some almost three decades there have been no Queen's Counsels appointed and they seem to do just fine.

The other supporting assertion the government makes is that there is confusion around the term 'Senior Counsel at the bar' and those lawyers who are called 'Special Counsel' in their respective law firms. This, quite frankly, is another ridiculous argument. Once again, having been asked for any evidence for this, except for anecdotes that would be hearsay upon hearsay in any ruling on evidence in court, there is nothing that has been provided by the government.

You would think that it is common sense that a reasonable person who is engaged in court matters where they need to brief a barrister, and perhaps a very experienced barrister, would be relying in almost all circumstances on their instructing solicitor to make recommendations on who to brief and why. It is an insult to the legal profession to suggest that an instructing solicitor is going to be confused as to who they ought to be briefing on behalf of their client and will be confused into thinking that a special counsel at an in-house law firm is somehow a practising barrister and confuse them for senior counsel. It is an insult to instructing solicitors.

The second argument that the government pursues in support of this bill is that there is widespread support amongst the legal profession, and I will quote the government:

It reflects a clear position of a majority of the legal profession in South Australia and aligns opportunities for other senior advocates with other jurisdictions already making this change.

Once again, as with some of the other reasoning that is put forward in prosecuting the necessity of this bill, that reasoning does not have any substance to it.

In terms of numbers, they just do not stack up as the Attorney-General is claiming. Even a person with simple maths knowledge can see from the Law Society of South Australia's survey of members that 843 people out of a possible 3,444 members does not equal a majority. It is actually 24.4 per cent of the legal profession, less than one-quarter of the legal profession responding in favour of the change. The Attorney-General claims it is 'a majority of the legal profession'. The Attorney-General might not be a mathematician either, but in my books 24.4 per cent does not equate to a majority of the profession and the reasoning that that is a majority of the profession I think is riddled throughout the reasoning in support of this bill.

In fact, the majority of the legal profession did not even respond to the survey, so to suggest that it is a majority of the profession in favour makes no sense whatsoever. I think it is rather telling of the arguments that the government has made in support of this bill that they are seeking to misuse statistics to support it.

The opposition just cannot support the bill in its current form. We are putting forward amendments to make changes to what is a flawed bill, a bill that has been put forward with arguments that make little sense, a bill that has been put forward with modelling statistics that misrepresent the views of the profession. In the committee stage, we will be prosecuting the amendments and I will outline at clause 1 the nature and effect of those amendments, but in effect we have a couple of different scenarios, depending on the will of the chamber, about how to try to make some improvements to what is a bad bill.

The Hon. M.C. PARNELL (16:27): Of all the iconic Australian movies, the one that has added more to the Australian lexicon than any other is undoubtedly the 1997 classic The Castle. There would be very few people in this country who have not heard these phrases: 'Tell him he's dreamin', 'How's the serenity? So much serenity!', 'What do you call this, love?', 'Suffer in your jocks!', and the lawyer's favourite, 'It's the vibe.' Apparently there is a prize for any barrister who actually uses that phrase in a real courtroom, especially in the High Court, 'It's the vibe, Your Honours.'

I raise The Castle because there is another exchange in the movie that is less remembered but far more relevant to this bill. In the film, retired lawyer, Lawrence Hammill, played by Charles 'Bud' Tingwell, visits Darryl Kerrigan at his home and says, 'I don't think I introduced myself fully. I'm what's called a QC.' Darryl replies, 'Oh, a QC. You're one of those.' Darryl's wife, Sal Kerrigan, then asks, 'What's that?' Hammill responds, 'A Queen's Counsel.' Sal Kerrigan says, 'Oh, you counsel the Queen?' Darryl Kerrigan then chimes in with a fine bit of mansplaining, 'They're the lawyers rich people use, love.' To which Hammill replies, 'That's probably the most accurate way of describing us.'

At the end of the day, there is nothing more to this bill than the objective of enabling lawyers to extract more money from rich people. The legal profession, my original profession, has decided that they will be able to make more money if they are able to use the old royal moniker of Queen's Counsel rather than the more accurate but less time-honoured postnominal of SC or Senior Counsel. I appreciate that this bill has the support of the Law Society and the Bar Association. I understand their arguments, but I do not agree with them.

If there was no other consideration than simply doing what the legal profession wants then it might be a reasonable response to just shrug your shoulders and say, 'I don't really give two hoots what lawyers call themselves provided professional standards are maintained, services are affordable and they all have insurance in case something goes wrong,' but it is not that simple. As Australia emerges all too slowly from under Queen Victoria's skirts and inevitably, in my view, towards a republic, there are incremental opportunities that arise to symbolically and legislatively proclaim our true independence. In my view, the direction should be forwards, not backwards.

Many of us scoffed at former prime minister Tony Abbott's decision to go back to the age of knights and dames and to give the first new knighthood to a member of the royal family. That was a backwards step. Similarly, going backwards to designating senior lawyers as Queen's Counsel is in the same boat.

Some might scoff and say that reintroducing Queen's Counsel has no bearing at all on our nation's sovereignty or our independence. Legally, that might be the case, but symbolically it is very important. Recently, we have seen the 45-year-old palace letters released from the Australian Archives. The delay in releasing these important documents was largely due to legal interference from the palace in London.

Ultimately, it took a persistent historian, Jenny Hocking, and an Australian High Court decision before the letters were released. Whilst the letters do not appear to contain the smoking gun many had imagined, they do show that our then head of state, John Kerr, was far more open communicating about Australian constitutional matters with the hereditary British monarch than he was with the democratically elected prime minister of our nation.

Whether or not The Queen knew about the dismissal in advance is secondary, in my view, to the bigger story of the divided loyalties of her man in Yarralumla. I very much enjoyed Peter Goers' column on this topic in the Sunday Mail back in July. He said:

So an unelected foreigner, her representative, and a flunkey all discussed dismissing a democratically-elected Australian government. Then the Queen's representative, the governor-general, sacks the prime minister and dismisses the government and appoints another and then tells the Queen—although she was fully aware that this may happen—and did not advise against it.

So Sal Kerrigan in The Castle was on the money at least in relation to Sir John Kerr QC and counselling The Queen. Before the winter break I introduced a private member's bill to change the state constitution and the Oaths Act to remove the requirement for members of parliament and other public officials to swear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors according to law. It will not be lost on members that, having moved such a bill, it would be unlikely that the Greens would be embracing a return to Queen's Counsel. It would be inconsistent, to put it mildly.

I would now like to briefly address the issue of the amendments. Whilst the Leader of the Opposition said they would be explained in more detail in clause 1, this is my understanding, and I am sure I will be corrected if I have got it wrong. Firstly, Labor's proposed replacement section 92 ensures that no QCs or KCs can be appointed by the Governor, the Attorney-General or a minister. It does not prohibit the appointment by the Chief Justice, but since the Chief Justice does not have that power anyway, presumably there would never be any new appointments of QCs or KCs under this model. It looks to be an effective ban on QCs, which I would support.

Secondly, Labor has not indicated that it will oppose section 93, presumably because it relates to existing SCs, QCs and KCs and not just to newly appointed counsel. Incidentally, I also find it odd that under the government's model appointment of QCs or KCs is the prerogative of the Governor, but removal of the appointment is the prerogative of the Chief Justice. This makes sense for SCs where the Chief Justice has both roles of appointment and revocation, but I am not sure it makes sense for QCs and KCs. It is the opposite to other models regarding appointments or declarations where the rule is 'easy in, hard out'—for example, removal of a serving judge.

Thirdly, Labor's alternative amendment to section 92, which replaces the word 'must' with 'may', appears to be a fallback position, which has the effect of allowing any government that did not want QCs or KCs the ability to simply withhold the names and never present them to the Governor. In other words, new QCs would presumably be allowed under a Liberal government but potentially not under a Labor government if that was the policy of the day. Also, whatever shade of government, the attorney-general of the day could pick and choose whose name to put forward. That is my understanding of the amendments; no doubt the leader will tell me if I have got any of that wrong.

One final point I would make is that, as others have pointed out, the current British monarch is elderly and will not live forever and the next few in line to the throne are all male. This would mean that any Queen's Counsel created under this bill would presumably become King's Counsel or KC. The bill reflects this, but the term KC is a term that most people have never heard of, which does bring into question the name recognition argument raised by supporters of the bill. Whilst probably none of us have ever met a barrister who was a KC, most of us have heard of KC and the Sunshine Band, the iconic funk and disco band out of America.

What does this have to do with the bill? As it turns out, by sheer coincidence, if we go back to November 1975, to Remembrance Day, that fateful day in Australian constitutional history, we can find the link. In November 1975, The Queen's representative in Australia, Sir John Robert Kerr AK GCMG GCVO QC, infamously sacked a democratically elected government. Also in November 1975, KC and the Sunshine Band released their greatest hit, 'That's the way (I like it)'.

Going back to the past, going back to an age of deference to an unelected hereditary monarchy living in a foreign country is not the way I like it. To finish, I will quote that other great constitutional lawyer from The Castle, Dennis Denuto, who brilliantly sums up why this bill should be opposed. He said in court, 'It's the vibe of it…It's the constitution. It's Mabo. It's justice. It's law. It's the vibe and, no, that's it, it's the vibe. I rest my case.'

The ACTING PRESIDENT (Hon. J.E. Hanson): Thank you, the Hon. Mr Parnell. That was a great contribution: so many pop culture references. I thought you said you were not across that.

The Hon. K.J. Maher: Commentary from the chair.

The ACTING PRESIDENT (Hon. J.E. Hanson): Excellent commentary from the chair, the Hon. Mr Maher.

Debate adjourned on motion of Hon. I.K. Hunter.

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