“This is a submission I have made to the NSW Bar Association’s current inquiry into the method of appointment of Senior Counsel being conducted by Roger Gyles AO QC.”

I am generally happy with the operation of the Senior Counsel Protocol. No system will satisfy everyone. However I believe it can be improved by simply changing the office’s title back to Queen’s Counsel and in a limited way extend the class of persons eligible for appointment beyond that of practising advocates.

The ancient office of Queen’s Counsel was changed by decision of the then Premier of New South Wales, the Honourable John Fahey.   In November 1992 it was announced that his Government would no longer make recommendations for the appointment of Queen’s Counsel. 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.

The last time Queen’s Counsel were appointed in New South Wales by the Governor-in-Council was therefore in 1992.  The history of this change is well set out in the Personalia column at (1994) Australian Law Journal, Volume 68 at 470 written by Geoff Lindsay.  The article contains the speeches of welcome made to the new Senior Counsel in 1993 when the system of appointment had been taken over by the Bar Association. 

The then Chief Justice Murray Gleeson’s address traced the historical role of the appointment of Queen’s Counsel by the Government.  However, he was circumspect in what he said about the change. However, in his address to the new Senior Counsel a few days later the then President of the Court of Appeal, Mr Justice Kirby was not so muted, inter alia he said,

“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.  It disadvantages those counsel who have a natural expectation that they would move through the profession to the rank which the new appointees before us have now attained. 

There is no doubt that an increased demand will arise for Australian legal services in Asia and elsewhere in the years ahead.  The appointment to the rank of Queen’s Counsel is an important and professionally valuable step in the life of a barrister.  Appointment to a new rank, differently styled and differently chosen, of senior counsel would not carry the same respect, at least until it earned it.  That would take time.”

What has happened since 1993 is that in the public mind and in the minds of the media there are two tiers or ranks of senior counsel.  Those who still retain the rank of Queen’s Counsel and those appointed as Senior Counsel.  The two species of senior counsel at times are confused, particularly by sub-editors in newspapers.   More confusing, if not misleading, is the comparatively new usage, in some law firms, of a classification of solicitor called “Special Counsel”.  I’m not quite sure the difference between the titles of “General Counsel” or “Special Counsel” as used in law firms, although that of “Special Counsel” appears of more recent origin.  I have even seen it being referred to as “SC” in advertisements for positions in some firms.

My submission to revert to the title of Queen’s Counsel is timely.   In June last year, the Government of New Zealand restored the title of Queen’s Counsel.   The NZ Attorney General Christopher Finlayson gave reasons for its restoration;

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

The previous NZ Government had created the office of Senior Counsel in 2008 when seven persons were appointed to it. Those seven SCs were given the option of adopting the title of Queen’s Counsel or remaining Senior Counsel. If the title of Queen’s Counsel is restored in New South Wales a similar option ought be granted to those SCs appointed since 1993 to remain as they are or to take the title of QC. I know of no QC appointed in this state prior to 1993 who gave up the title of QC to become a SC. I therefore suspect that most of those appointed SC will seek the change to QC.

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.

It also might be time to consider whether the Bar itself should extend the class of people who might be appointed to the rank of senior counsel beyond those practising advocates and members of the Bar Association.  Perhaps the Bar Council each year should allocate to itself the right to select perhaps  two  or three  lawyers of  eminence, whether  in either  the government service as Parliamentary Counsel,  the solicitors’  branch  or  from academia for selection.  This accords with what others have suggested that the evolution of the title of senior counsel might be.   It is useful to consider the comments made by Justice Kirby at (1994) 68 ALJ 470 at 473 and also those by the celebrated legal historian J M Bennett in his article of “Silks and Sergeants” (1978) 52 ALJ 264 at 273;

“At present it is too much the “closed shop” of advocates.  The English practice of conferring silk on barristers whose contributions to the law have been made as members of universities is, with only one or two exceptions, not followed here, nor, with exception of some Parliamentary Counsel, is the practice of so recognising barristers who hold high public offices, literally in the service of the Crown, or who do not appear in court.  It would accord with legal evolution that the office be broadened in scope so that it may give a more balanced reflection of legal eminence amongst those having the qualification of a barrister.”

The Bar, the wider legal profession and our society were peremptorily and unfairly denied from having this debate in 1992. It is time to have it now.