In June 2023, the Provincial Government of Ontario has restored the title and honour for distinguished lawyers of King’s Counsel. This restores the title withdrawn by Ontario in 1985 and is now in line with all other Canadian provinces except Quebec. The title of King’s Counsel is well known as a recognition of excellence across most common law countries and their constituent states. Broadly, it now leaves New South Wales, Western Australia and the Australian Capital Territory out-of-step with similar jurisdictions . The Fahey Government in the early 1990s resolved no longer to appoint Queen’s Counsel, a decision done without full and adequate consultation with the legal profession and wider community. It was done at a time when some people thought that Australia would soon become a
republic. How wrong they were, but it did not some in government and elsewhere dismantling the vestiges of Australia’s constitutional monarchy. There can be no valid reason for the New South Wales Government and Bar Association of New South Wales not to follow the lead of Ontario and others.

Jeffrey Phillips, SC

Last week the New South Wales Bar Association announced that its governing body, the Bar Council voted unanimously ‘to endorse the proposed wording for the Constitution alteration to enshrine a First Nations Voice as sound and appropriate, and to support public advocacy in support of a “Yes” for this substantive form of Constitutional recognition’. This unanimous vote it said took place ‘having considered other publicly available alternative proposals and arguments for and against the wording, and for and against a “Yes” vote, including those suggesting more limited forms of recognition and consultation’. I wonder who spoke for the “No” case at the meeting of the Bar Council or was that side’s argument just given “on the papers”?

The fact that the vote was unanimous does not suggest, contrary to the spirit of fearless advocacy, much of a debate in the deliberations of the Bar Council. The unanimous vote does not reflect the views of a substantial number of members of the Bar Association. The unanimous vote perhaps is symptomatic of a wider malaise in the ranks of barristers. The unanimous vote does not reflect much diversity of opinion being vigorously exchanged or at all. This Bar Council elected last year had one of the lowest turnouts of voters for many years. The electoral system of ‘first past the post’ assists the election of winner-take-all of a well organised team. Such a system militates against the election of a wider selection of opinion and can lead to ‘groupthink’.

One of the key objectives of the NSW Bar Association is the promotion of equality and diversity. The Bar’s Diversity and Equality Committee pursues policies it claims so that the Bar ‘reflects the wider community it serves’. With a substantial part of the community opposed to the current wording of the change to the Constitution the Bar Council with its unanimous vote is already looking a bit silly .

Notwithstanding the Bar’s support of ‘diversity’, lawyers who have publicly disagreed with enshrining the Voice in the Constitution have been derided. The eminence rise of multiple Bar Councils, Bret Walker, SC has labelled legal critics of the Voice as recorded in the Australian Financial Review in early March this year, inter alia, as “purveyors of doomsday scenarios” and warned those lawyers who engage in the ‘justiciability scare’ ought to think carefully before they lend themselves to it. So much for diversity of opinion. Professor Greg Craven, an original architect of the First Nations’ Voice has said that the proposed question on the Indigenous Voice “is far worse than I had contemplated the worst position being.” One silk I have spoken to who supports the “No” case will not say so publicly for fear of being cancelled by the big firms and their big corporate clients. Another silk who supports the “Yes” case has said to me that the Bar Council by entering the arena on this vexed topic will diminish itself amongst a substantial section of the community.

Aspects of the work of barristers are under challenge. The Bar Council’s decision actively to take sides in this contentious debate may not assist its members’ best interests.

Jeffrey Phillips,

SC a Sydney barrister

New South Wales barristers will this week receive their ballot papers for the Bar Council 2017/2018.

I am standing to provide an alternative opinion to the zeitgeist of recent Bar Councils . A complete re-think of the challenges and the direction of the Bar is urgent.A variety of opinions is vital to find a way through the current difficulties.

The Bar is in apparent numerical decline against the increasing numbers of our colleagues in the solicitors’ branch of the legal profession . That fact has meant a loss of work and in turn less necessary advocacy experience for the junior Bar. That is not good for the Bar or the solicitors who rely upon a skilled band of advocates available to all . The celebrated ‘cab rank rule’ does not apply to solicitors, particularly the big firms who can pick and choose sides and clients . The symbiotic relationship between the two branches of the profession is a result of long held wisdom.

This relationship is in danger of fracture . The Bar Councils of recent times have done little to restore it . Instead have engaged like university SRCs in peripheral political issues or behaved like Brahmins pretending all is well .

I stand for the re-introduction of QC.

I support a full embrace of mediation and the role of mediator  as a skill for the Bar. My friend Mary Walker must be commended for her tireless campaign to bring this issue to our attention and benefit.

I am opposed to the Bar expressing a view concerning Same Sex Marriage and similar matters of personal choice and conviction. This issue is a very personal one about which the Bar Council did not consult its members.

The Equitable Gender Briefing policy should be abandoned and more focused assistance be given to those at the Bar who need help.

I would be delighted to receive your support.

Check out Thomson Reuters’ interview regarding the new anti-bullying laws.

 The American television series Mad Men ,now in its fourth season, is compelling viewing both dramatically and as social commentary.  It is set on the cusp of the fifties and sixties in the  fictional Madison Avenue advertising agency, Sterling Cooper . Baby boomers and their offspring when watching this show are looking at the prime years of the  World War II  generation  at work and play.   What immediately strikes one about this historically authentic show is the depiction of the social attitudes and mores in this busy office setting . Most noticeably everyone is smoking, constantly and in the office! The executives when not at a long lunch are regularly pouring a colleague a whisky from a bottle prominently on display in the office.  The ethos of sexuality in the office is of the louche kind. The typing pool and models are fair game for conquest and open comment by  the executive  staff  which is predominately male.

This show brought to mind the changing nature of the Australian workplace and in particular for me the thirty five years  of my working life in industrial relations and the legal profession.  Attitudes where I worked from the mid seventies onwards were not too far from the ones depicted in Mad Men. The cultural zeitgeist of my working world then was still under the orbit of the World War II generation or those following and closely influenced by it.

 Smoking at work was ubiquitous. The eponymous smoko break was sacrosanct and proselytising in its effect. One wonders why a break was needed as you could smoke in any office. It appeared to be de rigeur in negotiations on an ambit log of claims or  at strike meetings. When one refers to  meetings in smoke filled rooms one is not engaging in hyperbole.

  Then there was the drinking!  Alcohol was the fuel of union and management negotiations, always after a successful negotiation  regularly during them. The  lawyers’ Friday long lunch was observed  as if a religious event. I can recall doing a case in Brisbane when all the participants in the  Conciliation and Arbitration Commission adjourned to the local pub. There the so-called negotiations continued  during a  liquid lunch.  That is lots of beer and  only chips..  Another occasion when the federal Commission  was sitting in the Law Courts Building in Queens’ Square, Sydney  an urgent hearing was set for  9am. The matter  was adjourned at 9:40am to the usual place.  I had no idea where the usual place was until I was directed to the Vintage Bar of the Carlton-Rex  Hotel in  Elizabeth Street, where the negotiations continued with  the late Commissioner Brack  having (for breakfast) a gin and tonic and  the officials each had successive  schooners of Reschs. I recall in the seventies Industrial Relations Society conferences  in Bathurst.  The weekend started at Central Railway station   in a crowded  carriage where there were full  eskies. Thereafter drinks and singing   all the way to the  Blue Mountains and beyond .Once there the festivities continued apace  all weekend, with the  learned speakers addressing an almost empty  auditorium with the bulk of the  conference attendees  across the road in the pub.  One union official told me never to trust anybody who didn’t drink. No wonder that heroic Oxford drinker Bob Hawke rose, like the head of a well poured beer  to top of the ACTU.

That  openness of sexual peccadilloes and ingrained sexism  shown in Mad Men were equally evident in the industrial relations and legal worlds of seventies Australia. Cases like the recent David Jones imbroglio were unknown and perhaps regarded as droit de seigneur. I can recall one barristers’ Christmas party at the Sydney Cricket Ground where a couple’s alcohol laced ardour led to congress on the hallowed pitch. The counsel in question achieving legendary status.

How when and why the work culture changed so dramatically in the two  closely allied industries is worth a longer examination than this piece can supply. Change it has.  Smoking has at work been  banished  from indoors,  drinking even during lunch is restrained and generally after work. The sexual banter and sexism openly gone or in code. Office flirtation is careful, off the set and secret.

The past is indeed a foreign country.