Unlike the British, we Australians seem to be happy with abandoning tradition at the drop of a hat. All it took was the New Zealanders to contemplate changing their flag and the debate has already commenced here. There is of course a fine line to be balanced between progression and throwing out the old “just because”.
So it is with the debate about whether our senior counsel should be appointed Queen’s Counsel, as was the case for many centuries, or remain known as Senior Counsel.
Before entering the ‘whys and wherefores’ of the debate, here is a beginner’s guide to what these post nominals mean.
In South Australia all legal practitioners admitted to practice by our state Supreme Court are admitted as barristers and solicitors because we have a “fused” profession. Some of our number choose to be barristers exclusively, giving up the right to practice as solicitors. Barristers are briefed by solicitors principally to do court work.
All barristers are regarded as juniors until they are appointed Senior Counsel, when they ‘take silk’. We distinguish those who have practiced as juniors for a longer while as ‘senior juniors’. Few barristers get to the level of silk, which recognises that they have fulfilled certain criteria set out by the Supreme Court. The appointment is by parliament on recommendation of the Chief Justice. The expression ‘take silk’ is used because an SC is entitled and expected to wear silk robes and, on ceremonial occasions, the long bottom wig.
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For most of our history the appointment was known as Queen’s Counsel, until our state government changed that to Senior Counsel. The same occurred interstate and with Commonwealth appointments but the tide has now turned. First the Commonwealth, then New South Wales, Queensland and now Victoria have either changed back or are contemplating it.
The legal profession in South Australia have recently been asked by the state Attorney-General to also contemplate a return to QC.
There are some very good reasons to change back. First, it is logical. The Queen is our head of state. The appointment is by parliament. Based on that it makes sense. Analogously when we prosecute indictable offences we still do so in the name of Regina. Why not with appointment of silk?
That aside, there are important practical considerations. First, as I observed above England and Wales still have QCs. In contested markets such as Singapore and other Commonwealth jurisdictions where Australian barristers are competing with their English counterparts, it makes sense for us to be able to do so on an equal footing. The competition is tough enough without the need to market our senior counsel as SCs, which is arguably less desirable to a client than engaging a QC.
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Second is the increasing use of the term Special Counsel, which is used to denote in-house barristers in solicitors firms. I personally don’t agree with the practice and we do not use the title in our firm. It is a confusing title, particularly when abbreviated to SC. How on earth is the punter supposed to pick the difference? But there is a difference, and a very significant one in all likelihood. The reintroduction of QC would clear that up.
There’s more confusion as well. Recently appointed silks use SC and some their earlier appointed colleagues remain QCs (when the change was made, silks had the option to keep the title QC which almost everyone did). My perception is that some had their hand forced through expectation or political correctness, particularly those holding government appointments.
What about the reasons against the reintroduction of QC? It probably turns on a desire to reflect contemporary Australia and republican sympathies. It is no coincidence that the change was rolled out by Labor governments and rolled back by Liberal, LNP or Coalition governments.
However it ought not be a political issue because the practical considerations are far more important than the political ones. Overall, I think they weigh in favour of a change back.
Put it this way, if the interstate bars are returning to using QC the inconsistency may ultimately make it difficult for our South Australian silks to mix it up with their interstate colleagues. That is plainly undesirable and may be the very reason why our Attorney, a barrister himself, has kicked off the discussion again.
I am in favour of the change back and would be surprised if that is not the majority view of the profession. It will be interesting to learn, however, about community views on the matter.
Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, Member of the Executive of the Law Council of Australia and immediate past President of the Law Society of SA. The opinions expressed in this column are his own.
His column appears every second Thursday.
Disclosure: Morry Bailes is a member of the Liberal Party.
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