© (ChieF Justice's CHawaERS ‘SUPREME COURT GPO Box 1068 ADELADE SA 5001 2 October 2018 The Honourable Vickie Chapman MP Attorney-General GPO Box 464 Adelaide SA 5001 Dear Attorney-General SA Bar Association Proposal for the appointment of Queen's Counsel | refer to your letter of 7 September 2018. | thank you for giving me the opportunity to put my views on the proposal of the South Australian Bar Association (the SA Bar) after | informed you of my opposition to it. The SA Bar has asked the Judges to inform it in writing of their opposition to the proposal and their reasons for it. Accordingly, | have forwarded a copy of this letter to Mr Hoffmann QC. The Judges oppose the proposal. When in 2008 the government of the day, at the request of the then Chief Justice, the Honourable John Doyle, agreed to end the practice of appointing Queen's Counsel in the exercise of the prerogative, the independence of both the legal profession and the judiciary was strengthened. Restoration of the title will weaken it. The SA Bar's proposal (the proposal) assumes that if the Executive were to adopt the proposal, the Judges of the Court would continue to make appointments of Senior Counsel and not require an undertaking from Senior Counsel not to seek an appointment as Queen's Counsel. The Judges have expressly refrained from considering their response should the proposal be adopted by the Executive. It should not be assumed that if the SA Bar's proposal were adopted that the Judges would facilitate it. The Judges of the Supreme Court cannot be co-opted by others into a scheme of their making. In the past appointments to the office of Queen's Counsel have been governed by a regulation made by proclamation in the exercise of the prerogative power which is attached herewith. ‘That regulation did not allow a direct application by individuals but required the appointment to be made on the advice of the Chief Justice. The Judges will not give any such advice to the Governor through the Attorney-General. It would be a curious development if this prerogative, which is so intrinsically connected to the administration of justice, were to be ‘exercised not on the recommendation of the Judges but on the application of an individual or his or her professional association ‘The appointment of Queen's and King’s Counsel has its genesis in a time when the Crown was much more directly involved in exercising judicial power and influencing the decisions ofthe Judges of its courts. They were appointed to give advice to the Crown on matters including decisions in capital cases and the controversial exercise by the Crown of a purported prerogative to dispense with the Acts of Parliament. Appointment as King’s or Queen's counsel constituted a permanent general and exclusive retainer and until 1920 it was necessary for King’s Counsel to obtain a licence to appear for a defendant in a criminal case. In contrast, the modern obligation of Senior Counsel is to generally be available to accept a brief from whosoever choses to instruct them. Indeed the purpose of the undertaking of practice at the independent Bar, which my predecessor the Honourable Len King first required of Queen's Counsel, and which the Court now requires of Senior Counsel, is to ensure that Senior Counsel are not only, or primarily, available to clients of particular law firms. | have also attached herewith a copy of the standard form of Letters Patent by which appointments to the office of Queen's Counsel were made. Itcan be seen from the Letters Patent that from a 21* century perspective the office of Queen's. or King's Counsel is an anachronism. The Letters Patent purport to grant ‘Our said counsel’ precedence in rights of appearance before the courts. The courts would not now ever recognise the Executive's bestowal of an order of precedence on counsel of its choosing in judicial proceedings. The independence of the judiciary is a cornerstone of liberal democratic government. It is well recognised that an independent legal profession promotes access to justice for the community as a whole. The independence of the legal profession also buttresses the independence of the judiciary. In D'Orta-Ekenaike v Victorian Legal Aid McHugh J observed:' ‘The independence of the Bar in large part therefore secures the independence of the judiciary. It seems highly unlikely that public confidence in the administration of justice could be maintained at its present level ifthe administration of justice in all its aspects was a government monopoly. Hence, there is an undeniable public interest in the maintenance of an independent Bar that, within the limits imposed by the adversarial system of justice, assists in achieving an efficient. and economical system of justice. The appointment of Senior Counsel recognises their pre-eminence at the Bar and their leadership of the profession. For that reason the Rules of this Court allow higher rates for Senior Counsel. Appointment by the Judges, after extensive consultation, provides an objective indication to the community of the pre-eminent members of the independent Bar. In that respect the appointment of Senior Counsel goes some way to correct the information asymmetry in the legal services market on the relative skills of barristers. The connection between the appointment of Senior Counsel and the costs rules made pursuant to the Supreme Court Act 1935 (SA) provides a statutory basis for Part 12 of the ‘Supplementary Rules of this Court. The appointment of Senior Counsel by Supreme Courts in Australia is of relatively recent origins. In this State it commenced with the making of a Supreme Court Practice Direction (amendment No 9) of 12 May 2008. The Rules for the appointment of Senior Counsel made by the Supreme Courts of some States and Territories, and the contemporary constitutional independence of the Courts from the Executive, raise the question whether the Crown prerogative to appoint Queen's Counsel has been abrogated. That constitutional question aside, in light of the modern developments, the conferral of a prerogative title on persons already appointed as Senior Counsel by this Court pursuant to its, Rules signifies nothing more than the conferral of Executive favour. It cannot and will not confer any precedence in the courts which the courts would not otherwise give. It can confer no right to a higher taxation of costs than that which pertains to the office of Senior Counsel. 1 D'Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 at [105}-[106]I make the following observations about several of the arguments in support of the proposed scheme made in the Notice of Motion put to the Annual General Meeting of the SA Bar. ‘The complaint that the post-nominal SC is not as well-known as the post-nominal QC is difficult to accept. The Judges have not noticed any such thing. Senior Counsel appointed since 2008 regularly appear in the Full Court and Court of Criminal Appeal as lead counsel. Solicitors seem to have no hesitation in briefing Senior Counsel to appear against Queen's Counsel. It is not unusual for the leaders to be a Senior Counsel on both sides of the bar table. All of that is not surprising because there are many more Senior Counsel actively practising at the SA Bar than there are Queen's Counsel. There are a number of Judges of the District Court who were Senior Counsel before their appointment. Justice Doyle and | were both Senior Counsel before our appointments to this Court. Solicitors and counsel have had since 2008 to explain the significance of the title Senior Counsel. There is no reason to think that South Australia's legal practitioners have not been up to the job of explaining both the change of nomenclature and the important matters of principle underpinning that change, in the decade since they were made. Moreover, in the event of a change in the gender of the sovereign on any succession, a similar explanatory exercise is required. The Judges have not seen any evidence that litigants have been misled by legal practitioners in solicitors’ firms who describe themselves as special counsel As to the perception that an ‘SC’ is in some way perceived as a lesser appointment, that is not supported by the experience in New South Wales. As | understand it, admittedly on the same sort of anecdotal evidence on which the argument put in the Notice of Motion relies, in New South Wales, the fille of QC, is more often seen as quaint than superior. Contrary to the implication in the Notice of Motion, there is no Australia-wide trend to return to, the office of QC. In recent times Victoria and Queensland have reverted to the past practice but New South Wales has not. | am not aware of any evidence that Senior Counsel in New South Wales have more difficulty in obtaining briefs nationally or internationally than Queen's, Counsel in Victoria and Queensland. The office of Senior Counsel appointed by the courts remains the position in Tasmania, Western Australia and the Territories. Hong Kong and Singapore, which are international centres of commercial ligation, appoint Senior Counsel. In Hong Kong the appointment is made by the Supreme Court and in Singapore by the Academy of Law? You refer in your letter to the possibility of the direct appointment of Queen's Counsel on the Attorney-General’s recommendation of persons who have not been appointed Senior Counsel. | was not aware before your correspondence that you were considering such a proposal. For the following reasons I counsel against it. First, if the proposal is that the Attorney-General himself or herself will personally assess applicants for Queen's Counsel, then serious questions will arise as to the credibility of the appointment. | understand that for some time in New South Wales, when the Attorney-General reserved the right to make appointments beyond those recommended by the Supreme Court, some silks came to be referred to as ‘political silks’ to signify that the title was not truly deserved. ‘Secondly, if the proposal is that the Judges will be consulted by the Attorney-General before making a recommendation to the Governor then, again, it should not be assumed that the Legal Practitioners Ordinance (Hong Kong) cap 19, s 314; Lega! Profession Act (Singapore, cap 161, 2009 rev ed) s 30.