January 2

The rustle of silk: a restoration play for the 21st Century?

This paper by our ACM's Queensland Convenor was presented to our 14th National Conference. After we invited him to present a paper on the restoration of Queen's Counsel by Queensland Attorney-General, the Hon. Jarrod Bleijie MP, we were delighted to learn that Mr. Bradley himself had just taken silk. We congratulate him and we also warmly congratulate the Attorney-General for his superb initiative.

Below are the Letters Patent which include those stirring words "To all to whom These Presents Shall Come Greeting: … We of Our own special grace … by these Presents do constitute, ordain, and appoint Our trustee and Well-beloved Thomas Joseph Bradley … to be one Our Counsel Learned in the law …" To download a larger version of the Letters Patent, please click here. 

What is there to know about Queen’s Counsel?

A QC wears a silk gown to court of a particular design, which is why the appointment as Queen’s Counsel is often referred to as “taking silk” and QC’s are colloquially referred to as “silks”.  QCs also wear a unique black court frock coat, instead of the long sleeved waistcoat.  On normal court appearances, at trials or appeals, a QC wears a short horsehair wig, the same as a junior counsel.  But on ceremonial occasions, a QC may wear a full-bottomed wig.

A QC has the privilege of sitting within the bar of the court in the position of pre-eminence; in Queensland at the right-hand end of the bar table.  Of course, where a QC is appearing in a matter against the Crown, such as in defence of an accused or for a civil claimant against the Crown, the Counsel appearing for the Crown (whether a QC or not) may take the pre-eminent position. 

The first Queens Counsel was Sir Francis Bacon, who in 1597 was given letters patent affording him precedence at the Bar, under the title Queen’s Counsel Extraordinary.  In 1603, after the succession of James the First (and Sixth), Sir Francis was given the formal style King’s Counsel.  Since then this shorter title has been adopted for members of the Bar upon whom that status is conferred by the Crown and recognised by the Courts.

The position, over time, superseded and outlived the former Tudor designation of sergeant-at-law. You may recall the sergeant as the first character in The Canterbury Tales:

His fame and learning and his high position
Had won him many a robe and many a fee.
There was no such conveyance as he;
All was fee-simple to his strong digestion,
Not one conveyance could be called in question.
Though there was nowhere one so busy as he,
He was less busy than he seemed to be.

Until 1992 in New South Wales, QCs were appointed by the governor, upon advice from the Attorney-General, usually after consultation with the president of the New South Wales Bar Association. As the Hon Roger Gyles AO QC reported in 2010:

For many years, it had been the practice of successive attorneys general to seek the recommendation of the president of the New South Wales Bar Association as to those to be appointed as queen’s counsel. The president consulted widely before making the recommendation. It was rare for the attorney general to depart from the list recommended by the president. It has been a very long time since any attorney general has had sufficient personal and current knowledge of the bar to make the selection.

However, in November 1992, the New South Wales Premier John Fahey announced that no further appointments would be made. As Jeffrey Phillips SC has noted:

The Bar and the legal profession were ambushed by this change. The announcement was a surprise, not only to the New South Wales Bar but to others who had been asked to comment upon a legal profession Issues Paper, included in which was whether the office of Queen’s Counsel should be abolished.

Following the NSW Government’s decision, the NSW Bar Association established its own rank of Senior Counsel (SC), who are appointed after an exhaustive process of consultation with members of the profession and the judiciary.

At the first SC appointment ceremony in 1993, the then President of the NSW Court of Appeal, Justice Michael Kirby told the new appointees:

I hope that the Executive Government of the State will reconsider that decision, if such it be. The Premier is a thoughtful and intelligent man. He is himself a member of the legal profession. I would hope that he would reflect again upon the decision. It was announced on the very day on which I, and other Judges, received a discussion paper issued by the Attorney General, which raised amongst others, a question for our comment as to whether the office of Queen’s Counsel should be abolished. If the Government, Parliament and people are still interested in receiving the opinions of the Judges on that matter, such opinions will in due course be expressed. It was, to say the least, a little surprising that, on the very day of receipt of the consultation paper, a decision was unilaterally announced. At the least, it is undesirable that such a decision should be made unilaterally for this State only.

The change of position in NSW followed some controversy about the role of the Attorney General in making recommendations to the Governor about the appointment of QCs. Disquiet between the Premier, the Attorney and the profession appears to have played a role in the decision of the players to turn their backs upon each other and pursue a different course.

In 2010, reflecting on the 1992 decision, Jeffrey Phillips SC made the following point in his submission to the NSW Bar Association inquiry into the appointment of Senior Counsel:

The timing of the John Fahey’s announcement in November 1992 perhaps was him expressing his support for the then topical question of whether Australia ought become a republic. The overwhelming NO result of the referendum of 1999 on that issue should have for a time resolved such matters. I believe that whilst this country remains a constitutional monarchy the 1992 change from the QC post-nominal was petty, undemocratic and unnecessary. The first Queen’s Counsel appointed in New South Wales was John Hubert Plunkett who came from Ireland and was a Roman Catholic at a time when members of that religion were perceived to be mistreated by the Protestant ascendancy. It is a shame if John Fahey’s antipodean Fenianism was a pretext to the decline of this ancient office.

In 1994, the Queensland Government followed New South Wales, announcing the Attorney General Dean Wells would no longer make recommendations to the Governor for the appointment of QCs. The Queensland Bar Association developed a protocol, which included selection criteria, an application process, with accompanying fee and a Bar Association Committee to review applications. The Bar’s recommendations were forwarded to the Chief Justice, who consulted with the other Judges of the Supreme Court, the local Federal Court Judges and Judges or Tribunal members in any relevant specialist jurisdiction, before deciding which applicants, if any, were to be designated Senior Counsel.

In 1995, the Supreme Court of the ACT, effected a moratorium on the appointment of QCs. In 2000 the Supreme Court of Victoria ceased to appoint QCs. Since then the Victorian Chief Justice has appointed Senior Counsel. In 2001, the Supreme Court of Western Australia did likewise. Tasmania followed in 2005.

The Northern Territory remained loyal to the title QC until 2007, when the Supreme Court Rules were amended to facilitate the appointment of Senior Counsel by the Chief Justice.

The last State to follow the fashion was South Australia, where the Government “replaced” the appointment of QC with SCs in 2008. This followed some controversy in 2006, when then Premier Mike Rann asked the Attorney to review one of the Chief Justice’s recommendations. At the time, Mr Rann said:

Cabinet and Executive Council are virtual rubber stamps for the judiciary. Yet the title QC clearly refers to it being a Crown appointment.

Being a QC does, and must always, mean more than being able to charge clients thousands of dollars a day. It must be about the highest standards of ethics, not just technical competence.

The letters QC, a designation abolished in other states, must stand for something, a certain quality.

The news media reported that Mr Rann created turmoil within the legal profession when he personally intervened during a Cabinet meeting to stop the appointment of criminal barrister David Edwardson because of his professional involvement in two controversial cases.

South Australia had had a similar issue in 1969, when Elliot Johnston’s appointment was blocked by Premier Steele Hall because of Johnston’s membership of the Australian Communist Party. When Hall agreed to appoint all of Chief Justice Bray’s recommendations except Johnston, the Chief Justice withdrew the list. The standoff between the Premier and the Chief Justice was resolved the following year with a change of government. The incoming Premier, Don Dunstan, promptly approved Johnston’s appointment. The “Red Silk” was later appointed to the Supreme Court of South Australia.

Stuart Wood, writing in Quadrant in May this year, summarised the period from 1993 to 2008 in this way:

Thus, over a period of 15 years, each of the States gave up a 400 year old brand that is instantly recognised internationally as indicating expertise, excellence and reputation. It was the economic equivalent of replacing Coca-Cola with Cottee’s.

The appointment of Commonwealth silks is rare. The last Commonwealth QCs were appointed by Philip Ruddock in March 2007, David Bennett QC and Thomas Howe QC. No appointments were made during the Rudd Government, but on 8 July 2010, under Prime Minister Gillard, Attorney General Robert McClelland appointed George Witynski as the first Commonwealth “Senior Counsel”. There was no public discussion about this change; it was merely mentioned in the last line of a press release issued by the Attorney’s office.

The Australian’s legal commentator Chris Merritt reported:

The glory for helping rid the profession of the QC anachronism rests mostly with McClelland. It was his decision. There was no hand-wringing, no agonising about historical links to another country, just a quick decision. While the policy change came from McClelland, it looks as though Julia Gillard is also due some glory.

Federally, the process of appointing new silks is simple: the attorney-general, after consultation with the prime minister, recommends candidates to the governor-general. And it was this prime minister, not the last one, that McClelland consulted about the change. It then went to Governor-General Quentin Bryce — the Queen's representative — who had the honour of officially killing off the title of Commonwealth QC.
While the States were abandoning the title and the Commonwealth institution was being altered by press release, interesting developments had been taking place internationally.

In 2003, the appointment of QCs was suspended in the United Kingdom. Republicans and reformers publically anticipated that it would be abolished. But the tide was turning. In November 2004, after much public debate, the UK Government announced that appointments of QCs for England and Wales would resume, with a nine-member panel to choose appointees. The Lord Chancellor supervises the appointments process, reviews the panel’s recommendations and takes them to the Privy Council for approval of the issue of letters patent.

In 2007 in New Zealand, new legislation had replaced the title QC with SC. However in June 2009, Attorney-General Hon Christopher Finlayson announced that the title of Queen's Counsel would be reinstated.

The government has responded to concerns from the legal profession and will restore the title of Queen's Counsel to recognise outstanding members of the independent bar.

The title Queen's Counsel is instantly recognised as providing a certain standard of legal advice both among the New Zealand public and internationally.

However, the government is taking these steps to protect the essential independence of the inner bar. The looser rules for eligibility as Senior Council introduced by the previous government threatened to dilute the independence of our most senior advocates.

A bill to implement the restoration was introduced into Parliament in March 2010. Although delayed by opponents in committee, the bill passed committee stage in November 2012, was passed in a third reading and received the Royal Assent on 19 November 2012. Those appointed SC during the interregnum, were permitted to apply for letters patent and, of course, they have.

South Africa lost the title in 1961, when it became a republic. Senior Advokaat replaced QC, with appointments made by the State President. Since the new South African constitution came into force in 1994, there has been legal controversy as to whether the President can appoint SAs.

In Sri Lanka, the position of QC ceased when it became a republic in 1972, being replaced by the title Senior Attorney-at-Law. In 1984, that title was replaced by President’s Counsel or PC.

In India, Pakistan and Bangladesh the position of Senior Advocate was introduced when the ability to obtain letters patent was lost.

The appointment of Queen’s Counsel continues in most of the Canadian Provinces. It was abolished in Ontario in 1985 and the Federal Canadian Government ceased to make recommendations for federal QCs in 1993.

In terms of our regional competitors, Hong Kong has lost the title QC, when ties to the Crown were severed in 1997. Singapore has not had the title since it seceded from Malaysia in 1963. The response of the English Bar in recent years has been quite instructive. Major Commercial Barristers Chambers in London have established branches in Singapore and Hong Kong. In those jurisdictions, the title QC has a deep resonance. It attracts to the local market high quality commercial disputes work, as well as advice, and large scale work in international arbitrations. In Singapore and Hong Kong, the caché of having a QC conduct a case or give advice is highly prized.

Somebody, it appears, was taking notice.

When the Newman Government was elected In Queensland in March 2012, a new young attorney general was appointed. Jarrod Bleijie, the member for Kawana, is a staunch Monarchist. At the traditional full court ceremony at which the Supreme Court of Queensland exchanges Christmas greetings with the Attorney, held on 12 December 2012, the new Attorney-General announced that senior members of the Queensland Bar would again be commissioned as Queen’s Counsel as part of reforms to the State’s justice system.

The feedback I have received raised concerns that SC was often mistaken for the term Special Counsel, which many law firms have taken to using for solicitors.

QC is also more widely known and understood by the public as a mark of professional distinction at the Bar and this move will make the distinction much clearer.

It is important that Queensland silks are competitive internationally particularly in Singapore and Hong Kong where the use of QCs is preferred.

Asian countries employ QCs from as far as the United Kingdom and this change will give Queensland leverage over other Australian states competing for a share of this market.

Mr Bleijie also announced that current Senior Counsel would be invited to have their title amended, should they wish, and that all new appointments would now be given the title of Queen’s Counsel.

The Newman Government has received wide spread support from the Queensland Bar Association and the legal profession to revert to the traditional title.

The President of the Bar Association, Mr Roger Traves SC, responded favourably to the Attorney’s suggestion.

Subject to some important qualifications, the Bar Association of Queensland has given in principle support to the re-introduction by the government of appointments as Queen’s Counsel. The most important qualification is that the integrity of the existing system of appointment be maintained and, in particular, that the Governor in Council appoints all of those and only those recommended for appointment by the Chief Justice.

The office of Queen’s Counsel was recognised in Queensland for almost one hundred and fifty years before in 1994 the process of appointment shifted to the appointment of Senior Counsel by the Chief Justice after consultation with the Bar Association. The office of Queen’s Counsel is well known to the public. It had served the profession and the public well, as recognition of seniority and achievement in the profession and by helping to identify counsel in whom the public could have confidence in the most challenging of cases. It was also a useful touchstone in identifying barristers suitable for judicial appointment.

The significance of the designation of Queen’s Counsel is well appreciated by the public, more so than the designation of Senior Counsel. It is in the interests of the Bar that the appointees to their senior ranks be identified clearly as Queen’s Counsel, a position readily distinguished from different positions within law firms and large corporations often also known also as Senior Counsel or Special Counsel.

The following year, Mr Bleijie wrote to all Queensland Senior Counsel inviting them to make an election if they wish to be commissioned as a QC. The response was overwhelmingly positive. 70 of the 73 Senior Counsel of the Queensland Bar sought appointment as QCs.

On 7 June 2013, the 70 Senior Counsel who had applied for letters patent were granted their wish. As the Attorney-General said at the time, they “opted to switch to the more recognised and esteemed title”.

From now on, eminent barristers will be appointed as QCs. The QC title is more widely recognised and understood as a mark of professional distinction at the Bar and this move will provide greater clarity amongst the general public. Queensland silks now have the edge internationally, particularly in Asia where the use of QCs is preferred. This change gives Queensland leverage over other Australian states, which are competing for a share of the international market.

The Newman Government has received widespread support from the Bar Association of Queensland and the legal profession to revert to the traditional title and I understand other states are now advocating for their Governments to follow suit.

The Courier Mail reported:

The State Government is showing its monarchist colours in the Jubilee year, with Queensland set to become the first state in the nation to return to the old “Queen's Counsel'' regime.

After nearly two decades of the more republican-leaning “Senior Counsel'', the state's top barristers are expected to soon resume the ancient title, QC.

Queensland Bar Association president Roger Traves, SC, acknowledged in a letter to members that some might view the move as pro-monarchist. “The arguments against included that the stance was pro-monarchy,'' he said. But Mr Traves also told The Courier-Mail the return to QC had positive, practical implications in distinguishing seniority.

Responding to critical comments by Mike Pelly and Terry Sweatman in the News Limited press, the blogger Ricky J Lee noted:

What Mr Sweetman and Mr Pelly probably do not see on a day-to-day basis are clients, both corporate and private, who come through doors of law firms speaking of briefing a QC. The argument that reinstatement of the Queen’s Counsel title is nothing more than a sop to the legal profession and its monarchist sentiments must recognise also that its original abandonment is the result of rising republican sentiments in Australian society in the last 2 decades and no other reason. To reason that the title of Queen’s Counsel is an arcane or anachronistic relic of generations past ignores the all-too-present reality that Australia is still a constitutional monarchy. Unless and until Australians vote for a republic, the appointment of Queen’s Counsels reflect the current reality of government, no less than the royal emblems on our Commonwealth and State coats of arms, the names of some of our public institutions, the names of our military forces and our political structure.

Republicanism should not begin with the lawyers or their titles. It should begin with the will of the people to make the constitutional change to discard our existing monarchy for a republic. Changes to names, buildings, institutions and titles should then follow. The fact that Australia is the only country in the world that retains the Queen as its head of state and yet has abandoned the title of Queen’s Counsel makes this point only all too obvious.

There is reportedly a strong push in Victoria for the restoration of the appointment of QCs. Advocates of restoration continue to make their case in New South Wales.

On 14 November 2013, the author was honoured to be among the 13 barristers granted letters patent by Her Majesty, under the hand of her Excellency the Governor of Queensland, Ms Penelope Wensley AC. This was the first regular appointment of new QCs in Queensland since 1993. The restoration of the title signalled the end of a 20 year interregnum.

[This paper was delivered at the 2013 ACM National Conference held in Brisbane. To download a PDF copy of this paper, including footnotes, please click here.]


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