March 28

QCs – a false argument

Independence of Bar not threatened

Silks purse: The case for bringing back Queen’s Counsel

THE termination of the appointment of Queen’s Counsel, now being reversed, had little to do with the independence of the Bar, except as a subterfuge, writes Professor David Flint in The Australian  on 28 March 2014 in the Legal Affairs section.



It had everything to do with the once fashionable political agenda of removing the oldest institution from the constitutional system, the Australian crown.

This was yet another example of creeping republicanism, removing the symbols and machinery of the crown before the people have decided that their constitutional system should be so radically changed.

I remember the time when the first announcement for the termination of QCs appointments was made back in 1993.

I was in the company of a group of editors and journalists just before a meeting of the Press Council. Their glee was unrestrained, some no doubt recalling a particularly unpleasant cross-examination by a silk.

No one thought it had anything to do with the independence of the Bar, which was certainly not under any threat.

Everyone saw it as a symptom of the republicanism that former NSW premier John Fahey was thus able to infuse and make respectable in a significant sector of the parliamentary Liberal Party.

Given that the party had been founded by the revered Robert Menzies, and given the royalist inclinations of the rank-and-file membership, this was an extraordinary achievement.

But the politicians were persuaded to jump on the bandwagon particularly when it was explained that the coming republic was inevitable.

For Fahey the ending of the appointment of QCs was also a newsworthy addition to an otherwise unexciting “reform’’ of the legal profession. The core of this was the rebranding of solicitors and barristers as “legal practitioners”, a reform so pointless it was ignored by the profession.

Reinforcing his republicanism, the premier was thought to have been strongly influenced by his former law partner and the then head of the solicitors’ trade union, John Marsden.

A controversial figure, his wish to take silk is believed to have been thwarted when he was reminded that as a solicitor he was ineligible. Affronted — as he so often was — Marsden was ­determined to ensure no further appointments were made.

Presented as a newsworthy coup, it may well have encouraged a successive NSW premier to another unwise act — the expulsion of the governors from Government House.

The suggestion that until Fahey’s “reform’’ the Bar was not independent is a fallacy.

The Bar was normally consulted about QC appointments and in any event, there was an in-built quality control guaranteed by higher fees, and the practice — formerly a rule — of also engaging a junior counsel paid at two- thirds of the QC’s rate.

A silk was thus dependent on solicitors advising clients that the significantly higher costs were justified by the advocate’s quality. Only those confident of this would let their names go forward.

The independence of the Bar was and is entirely dependent on the willingness of its members to express and to act in accordance with what they perceive to be the public interest.

Today if it is the considered opinion of the NSW Bar that its recognition of Senior Counsel is crucial in maintaining its independence, the reintroduction of QCs will in no way hinder this.

There is nothing to stop the Bar from maintaining its system alongside the restored QC system. If the Bar were to do this, the market would no doubt determine which system involved the better recognition.

It should be recalled that the process of appointing SCs in NSW has not escaped criticism. It has been described as opaque and open on at least one occasion to a practice more appropriate to a gentlemen’s club — that is the blackballing of an applicant.

Critics will refer to the case of crown prosecutor Margaret Cun­neen, whose long overdue appointment as SC was delayed until after her sixth application. An independent Bar would surely have rushed to her defence.



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