God save the Queens Counsel
Written by Jeffery Phillips SC and Andrew Martin   
Wednesday, 12 March 2014

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The QC post-nominal has been revived in Queensland and Victoria. Jeffrey Phillips SC and Andrew Martin argue for its return in NSW.

The title of Queen’s Counsel (QC) is well known throughout Australia and the Commonwealth. Its widespread recognition is no doubt embedded in our consciousness because it is a rank some four centuries old. On the other hand the title of Senior Counsel (SC) has not taken root in the public mind and is not well recognised outside of the legal profession.

The appointment of Queen’s Counsel by the Executive Council in the state of New South Wales was abolished by decision of the then Premier, John Fahey, in November 1992.

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 by Geoff Lindsay in the Personalia column of the Australian Law Journal. The column contains the address of welcome in December 1992 that the then Chief Justice Murray Gleeson made to the last Queen’s Counsels to be appointed in NSW. The Chief Justice traced the history and importance of the rank of Queen’s Counsel. He only touched upon the recently announced abolition of the title.

A few days later in a speech to the new silks in the Court of Appeal, its then President Justice Michael Kirby described the Chief Justice’s comments as “delphic”. Justice Kirby was not so restrained about the decision of the Government to abolish the office of Queen’s Counsel. His Honour said (in part):

"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."

His Honour’s words spoken in 1992 have indeed been prophetic, as the title SC has never fully caught on and has crumbled in New Zealand, Queensland and Victoria. In those places where a choice has been offered to members of the Inner Bar to be either SC or QC, the rush to regain the latter post-nominal has been headlong and overwhelming. We do not know of any QC appointed up to December 1992 in New South Wales who relinquished the appointment of QC in favour of its ersatz replacement the SC.

The prestige of a QC in Asia

The practice of law is often referred to as a noble calling but is still a business. The brand of a business is a valuable and carefully guarded asset. The marketing of the brand is of enormous importance. The value of the brand recognition that the office QC has would be incalculable.

The United Kingdom had a debate about getting rid of Queen’s Counsels during the time of Tony Blair’s New Labour. The decision was ultimately made to retain the QC, albeit with a different appointment process. As Lord Falconer of Thoroton (then Lord Chancellor) told the House of Lords at the time:

"We felt it was wrong to abolish the rank of QC when there was considerable evidence that it benefited the market – in particular, so far as concerned the international business that came to London in relation to legal services."

The theory was that internationally, companies would source QCs from the UK, and then there was a flow-on economic effect to the law firms that engaged them.

The importance of such brand recognition for the QC title is not just for the supply by barristers of their services but also when considering the contemporary competition between legal firms across Europe and the Asia Pacific for the Asian legal dollar. QCs are also internationally recognised in the former British colonies of Hong Kong, Malaysia, and Singapore.

Critics of this view [see Greg Barns Opinion piece in Lawyers Weekly on 20 February 2014] may challenge whether or not the mark QC is still highly regarded there.

We asked Dr Patrick Lau, managing director and head of the Mergers and Acquisitions Department for CCB International, the investment arm of the China Construction Bank, based in Hong Kong, for his thoughts on the QC vs. SC debate. He had this to say:

"My experience is that certain sectors of Asians view royal connections favorably. Historically and even now there is tight control on the entitlements to use royal and related connotations. As such, QC will denote a high level of seniority. In my view, I would think QC sounds better to Asians than SC."

The words of Dr Lau, in our view, hit the right note. Part of the value of the Queen’s Counsel title is that it is readily apparent who has conferred it. The fact that the Americans and others can never have this mark of quality is exactly what makes its retention or restoration in this market so attractive.

Inevitably this debate may begin to split people along on the constitutional monarchy versus republican divide that has been on the boil or slow simmer for the past 20 years. Quite apart from the private sentiments people may have concerning the monarchy itself, there remains a sound business case for the restoration of the rank of QC.

Bring back the QC!

Jeff Phillips SC (pictured top), is a New South Wales barrister who practices in the areas of employment and industrial disputation, and is a member of Denman Chambers.

Andrew Martin (pictured below), is a New South Wales barrister who practices in the areas of equity and employment, and is a member of Chalfont Chambers.

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[This article was originally published in Lawyers Weekly and has been republished with full permission]