Rise of the refuseniks 
Thursday, October 20, 2011
Justinian in Bar Talk, Bar council elections, Silk selection

Rumblings in Phillip Street ... Silk refusenicks run for council elections ... More detailed information to be supplied to failed applicants for silk ... Process could drag on into next month ... "Vote for change" 

A decision about David Smallbone's application for silk has been delayed pending the Sydney bar 'n' grill providing more information to him. 

Contemplation of life without silkIt was expected to be resolved this week, but now may drag on into November. 

Details are sketchy, but apparently Smallbone and the bar have agreed to new procedures and process for the release of additional information, which extends to transcripts of comments collected by the selectors from people approached formally and informally for their responses.   

The names of those providing the assessments will be redacted. 

The bar has also told George Thomas that he too can have transcripts of comments, but this needs to be "clarified" by those who provided their views. 

This follows Justice David Yates' decision that the bar should release in redacted form information from the silk consultation groups on Smallbone's application. 

The YES, NO, NOT YET information has already been provided to the aspiring barrister, but more is to come under recently agreed "procedures". 

After receiving the additional material Smallbone has seven days to comment or make corrections. 

The bar will then scrum down and made a decision about his application for senior counsel. The decision has been stayed pending the outcome of this process. 

Smallbone said, "It's going to be an interesting November". 

Peter Skinner has also written to chief barman Phil Self and asked for "access to all the personal information about me that the association has collected in relation to my application". 

He said he was entitled to all the material under the Privacy Act and/or the common law rules of natural justice and procedural fairness. 

"Indeed, it is my opinion that under those rules of natural justice and procedural fairness I should have had access to this material before any decision was made upon my application, to afford me a fair opportunity to respond to or about it if I wished." 

The scrolls presentation ceremony for SCs takes place on November 3. In the meantime, bowing and scraping ceremonies are underway now.  

One barrister whose application in the most recent round was successful said: "I thought the system was f#@&*#% until I got up." 

See, The smell of burning silk

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It's interesting how these things go. 

Greg Curtain's famous letter of protest about the silk selection system in 2009 saw him successfully stand at the bar council elections that year and receive silk in 2010. 

Margaret Cunneen, who had a set-back in the wake of her Newcastle University speech in 2005, was also elected to the bar council after a run of misses with the selectors and soon after carried off the gong. 

Now Smallbone, George Thomas and Peter Skinner, all from this year's salon des refuses are putting their hands up for election to the council at the forthcoming elections. 

So too Sue Kluss from Maurice Byers Chambers, who was not an applicant for silk. 

The Occupy Martin Place revolutionary movement has spread its influence around the corner into Phillip Street.

The revolution is spreading from Martin Place to Phillip StreetThomas is seeking reforms much more widely cast than simply the silk selection business. He wants the cartel structure of the bar dismantled and barristers free to go into partnerships and trade in whatever structure they desire. 

He also wants consideration given to an independent Barristers' Union "to provide meaningful representation, care and support". 

Solicitors have been invading barristers' turf, with rights of audience, being able to call themselves "barristers" and some of them even togging up for court. 

Thomas wants a "level playing field" with solicitors. 

He has been at the bar for nearly 30 years and says he has never been politically passionate in his life, but this is the cause that has transformed him. 

See Thomas' election flyer

Skinner's approach is more conservative and confined to reforming the silk selection protocol. 

He says silk selection has reputational, economic and promotional consequences for barristers. For referees not even to be telephoned by the selectors shows that the process lacks thoroughness and fairness. 

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The NSW Legal Aid Commission has been carefully selecting senior juniors for its complex criminal matters panel. 

It shows a selection process that is far more painstaking than the way the bar association chooses silks. 

The selection criteria for the panel were carefully worked out and each applicant had pages of detailed questions to answer: how they handled complex trials in the past; how they managed to distill and narrow the issues; for how long did their trials run; could they have been run more efficiently without prejudice? 

Their referees too had about five pages of detailed questions to answer. 

Over 100 applied and Legal Aid says the quality of the material submitted was "outstanding". 

The whole exercise took many months. Originally the commission was looking to select about 50, but in excess of that number have already been chosen. 

Not only is there an appeal process for anyone who was left out, but the whole process will be reviewed in a year's time, in consultation with the bar and the law 'n' order society. 

If organisations like legal aid can put their mind to a system of careful and reviewable selection, is it beyond the wit of the bar 'n' grill? 

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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