NSW bar committee split on the QC question ... Unable to advise bar council on whether to ask the AG to restore briefs' favourite royal bauble ... Most submissions from members in favour of QC ... Bar brass remain opposed ... What next?
THE NSW bar's SC-QC investigation committee has split four-three on the question of whether the bar n grill should approach the AG for reintroduction of Queen's Counsel.
Four against, three in favour. There's no majority verdict here and the result is a hung jury: "it is not appropriate to make a recommendation".
The committee consisted of Lancelot (Bill) Priestley QC (chairman), Noel Hutley SC, Campbell Bridge SC, Arthur Moses SC, Anthony Lo Surdo SC, Elizabeth Cheeseman SC and Victoria Brigden.
The committee received 216 responses from members and those favouring an approach to the attorney general outnumbered those opposing by two to one.
Unlike Queensland and Victoria, the two states who have recently restored the ancient decoration, NSW has legislation prohibiting official schemes for recognition of seniority or status among lawyers.
The committee went through the well-trod arguments of the "Yes" and "No" cases and failed to reach a decisive opinion.
With the new Premier of NSW an avowed republican, it's unlikely any overtures from the Queen's men in Phillip Street will be at the top of the government's priorities.
The committee's report included the disclaimer that "the republican or monarchist stance should inform the issue".
This flies in the face of the bleeding obvious - that proponents of the "Yes" case want to add to their name a title that wraps itself in the mystique of monarchy - in this way suggesting their credentials are superior to anything else on offer.
The Priestley Seven suggested that if the bar does decide to approach the AG then the selection of silks must remain the exclusive province of the bar.
The executive council of the state would be expected to rubber stamp the bar's list of names eligible for letters patent.
It might be a little too much to expect, particularly in NSW, for attorneys general to keep their fingers off the list and not add the names of favoured mates and matettes or even strike-off the names of malodorous nominees.
This problem is put down as a "matter for consultation between the bar and the executive".
QCs are not appointed in any of the Asian common law countries that are said to be markets in which Australian barristers can ply their wares.
No local QCs in india, Pakistan, Malaysia, Sri Lanka or the two most mentioned as likely market places - Singapore and Hong Kong, where only Senior Counsel are appointed.
India has Senior Advocates, as does Pakistan. In Sri Lanka, silks hold the office of President's Counsel.
The Sri Lankan model provides inspiration and is something that could be developed for the top briefs Down Under - what about Governor's Counsel?
The YES case
The Yes case boiled down to two central propositions.
The appointment of QCs would protect and improve the quality of legal services provided by the bar
The idea is to ensure that:
"The quality of the bar is not dampened or diluted by the introduction of an artificial competitive disadvantage through the opportunistic and inconsistent exploitation of the historical and popular resonance of the QC post nominal."
NSW silks would be at a commercial disadvantage, as against Victorian and Queensland barristers, if they could not call themselves QC.
The current system with both QCs and SCs is confusing and not fully understood by consumers
Everyone knows that a QC is someone splendid, whereas they're not sure about SCs. The Yes case is concerned about ...
"The perceived risk of the development or exacerbation, of misconceived distinctions between members on the inner bar who are QCs and members who are SCs ...
"Public perception [is] that QC is a rank that is distinct from and superior to SC."
SCs across Australia had been the norm, but now that Queensland and Victoria have broken ranks, to be consistent NSW should do the same.
Then, of course, there is the confusion with solicitors who call themselves "Special Counsel". Mercifully, the committee did not raise the uncertainly that accompanies those awarded the Star of Courage.
The No Case
Given the unique role that barristers play in the administration of justice, "questions of commercial benefit and status must be regarded as secondary in the present debate".
The central issue is whether there is a public interest in having the executive government return to having a role in the appointment of silken ones.
"It is anachronistic to return to a system that entrusts and endows the executive with the power to select those entitled to be recognised as the most eminent members of the profession."
The No case makes a strong point: The Yes people say that the rebirth of QCs would clear-up confusion because it is more widely recognised and understood - how then does the implementation of a two-tiered system of SCs and QCs assist?
Further:
"A system which merely rubber stamps the appointment of Senior Counsel as Queen's Counsel adds nothing to the position or to the appointment process.
It simply adds a title. A title that adds the Queen's name but which is no longer connected with the historic process by which the title of Queen's Counsel was awarded, that is, executive involvement."
It doesn't serve the public interest to revert to a system of appointment that carries the imprimatur of the Crown where the selection process had been independently managed for 21 years.
As for being competitive in overseas markets, the number of NSW SCs practising in Singapore and Hong Kong is a tiny minority.
"The question is whether the system needs to be changed to accommodate the commercial interests of this small group."
There is no indication that the bars in WA, SA, Tasmania and the territories are considering reinstating the title of QC.
The argument that Queensland and Victoria QCs would have a competitive advantage over NSW SCs also doesn't stack-up.
"There are other reasons why NSW SCs are preferred, such as superior skill and knowledge, locality, recognition by instructing solicitors and knowledge of courts and the recognition by judges in NSW who are eligible to participate in the silk selection process."
Further, there are no reasons based on probative evidence that support the reintroduction of QCs.
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Let us wear the Crown
At it's heart, the Yes case is driven by concerns about prestige and status and, as such, reveals a remarkably tender insecurity.
Dusting off the old QC tag for needy SCs does nothing to clarify confusion or uncertainty. There'll still be tons of SCs - those who don't wish to convert and those in other jurisdictions who aren't given the opportunity to convert.
Having the government approve the list each year is a dilution of barristerial independence.
The idea would be to have a convention that says the government of the day doesn't meddle with the list.
However, conventions are putty in the hands of politicians.
Is it likely that barristers would decline the bauble if the AG of the day breaks with convention and adds or subtracts names from the sacred list?
So what's next on the agenda?
There will now be agitation from the rank and file for a special general meeting, which will vote overwhelmingly in favour of asking the AG to amend the Legal Profession Act and allow the development of a protocol for issuing letters patent.
After receiving the request, Justinian's fearless prediction is that the government will do precisely nothing.