Victorian silken-one warns about the evils of NSW SCs ... Where is the public interest? ... NSW should adopt the Victorian silk selection model ... The inferiority of Senior Counsel ... Discuss among yourselves
Victorian Queen's Counsel getting ready for court
FROM deep down in chambers within the Royal Yarraside Bar-Bar comes a secret, internal report putting the needle into the rum soaked corps of rebels in NSW who have opted to reject the plumage of Queen's Counsel.
The eight page missive whizzing around William Street and its purlieus is titled Issues Paper on the Public Interest and the Office of Queens Counsel.
The authorship is mysterious, saying only that it is "generated by a member of the Victorian Bar for discussion within chambers".
It's good to see a document that has been "generated", rather than authored - but never let it be said that Vic's Queens would pass-up an opportunity to put the mockers on the Emerald City's uniquely rugged Senior Counsel selection machine.
The secret report hoes into the idea that the appointment of Queen's Counsel is against the public interest. Of course QCs are in the public interest, because they are in the interest of barristers.
Great agricultural blows are directed at the Priestley report into whether NSW should readopt QCs.
When it came to Asian jurisdictions, apparently the Priestley Seven failed to "draw a distinction between fused practice jurisdictions and those with independent bars".
Hong Kong is regarded as having the only independent bar in the region.
This oversight is described as "appalling [and] calls into doubt the rationality of the majority finding [of the Priestley Seven]".
"On this point alone the majority view should be consigned to oblivion for failing to uphold the traditions and importance of independence and the Bar. It is better seen to be a political diatribe of supporting the NSW Bar appointment system without analysing where this system fits within the importance of an independent Bar."
What the NSW Bar should be doing, according to the voice from Yarraside, is to adopt the Victorian system, whereby silks are handwoven by the CJ.
In this way the prospect of political meddling with the sacred list is avoided.
The paper claims that the CJ's involvement makes the process "independent", whereas in NSW the selection of SCs is done by the Bar Association in the name of the president, and so cannot be "independent".
"Perhaps with NSW Bar continuing with appointments made by their Association only that that lack of impartiality in appointment does not really permit the appointments to be considered as being the same as those States involving the Chief Justice leading to the appointment of Queen's Counsel [sic]."
This rather ignores the reality that Vic's silks are appointed by the CJ, but the due diligence grunt work and bottom sniffing is done by a committee of nine, of which six positions are held by bar boys from Dixieland Chambers.
See Victorian selection method here
In NSW, CJ Bathurst keeps a black ball in his pocket, and he can veto anyone he thinks shouldn't be on the bar prez's list. He doesn't need a committee, so top that for "independence".
The poor Priestley people get a frightful pounding by the anonymous brief scribbling his missive beside Victoria's version of the great, grey-green, greasy Limpopo.
For instance, for the NSW "No" case to assert that the public interest is best served by the present NSW system is ...
"nothing more than a self- serving statement. It is strongly suggested here that the NSW system is flawed and deeply so. It strangely proceeds upon the basis that there would be political interference open in the future – it does not address the Victorian system nor the recommendations of the minority on the report."
He then turns-up the Kenwood Mixmaster to speed 10:
"There is now a strong argument that because the NSW Bar appointment system is so different to that of Victoria and Queensland, both of which rely solely upon an independent Chief Justice to make the appointments of silks, that there should be a different designation of NSW counsel as SCs so as to not confuse consumers with QCs who are appointed after a truly independent appointment process."
[snip]
Until such time as the NSW Bar has an independent system for the appointment of silk which would entitle those members as recognition as QCs they are correct in maintaining the system of SCs. They are not the same as QCs.
[snip]
NSW should be encouraged to abandon its system and follow the example of Victoria as soon as possible."
See, Issues paper on the public interest and the office of Queen's Counsel
See, Report of the Priestley Seven
See, NSW Bar announcement on retaining the current system of SCs