|The rustle of silk: a restoration play for the 21st Century?|
|Written by Thomas Bradley QC|
|Thursday, 02 January 2014|
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The position, over time, superseded and outlived the former Tudor designation of sergeant-at-law.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:
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:
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:
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:
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:
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:
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:
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:
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.
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.
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 President of the Bar Association, Mr Roger Traves SC, responded favourably to the Attorney’s suggestion.
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”.
The Courier Mail reported:
Responding to critical comments by Mike Pelly and Terry Sweatman in the News Limited press, the blogger Ricky J Lee noted:
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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