The bar is aflame, as it often is, over the vexed distinction between QCs and SCs. South Australia’s chief justice has virtually declared war on the government, and the bar is caught in the middle with its fragile ego exposed. How did we come to this fraught state of affairs?
The bar is a funny place. Attracting, depending on your point of view, the smartest or the most antisocial members of the legal profession, it remains in many ways a carefully preserved bubble of proud anachronism, separated from the grubby world of commerce and clients and unpaid bills, and by that means free to operate at the highest level of fearless independence.
There’s a lot to be said for this, given the fragility of the rule of law. A truly independent, unconstrained bar is a key bulwark against corruption of our legal system. In a way, you want a priestly caste in society whose sole job it is to work the law.
Inevitably, in the rarefied air of an ivory tower, comes a degree of weirdness. Whether barristers really need to wear horsehair wigs and long black gowns in order to maintain respect is doubtful. But they cling to the garb like it’s literally their last shred of dignity.
Likewise the attachment to title. Most barristers are called “juniors”; a small proportion are elevated to “silk”, or senior barrister status. Historically (since 1603) they’ve been called Queen’s (or King’s) Counsel. Metaphorically speaking, they are appointed by and serve the Crown.
In Australia, inevitably the crushingly obvious anachronism of lawyers, plying their trade 17,000 km away from their disinterested Queen, going about town with a royal title, was going to become controversial.
When it finally did, a slow wave of change swept through the profession (nothing happens quickly in the law). Starting with NSW in 1992, all of the states and territories eventually abolished the title of QC, replacing it with the rather more republican-sounding “Senior Counsel” (SC). The last aboard was South Australia, in 2008.
No sooner had the change been made, than the move to undo it got seriously under way. In the eastern states in particular, much of the bar was deeply unhappy about the loss of the QC appellation, and brilliant minds were turned obsessively to the construction of logical arguments as to why its abolition had been a Very Bad Thing.
Is it really that bad?
In truth, there isn’t much of an argument to be made. The terrible unfairness visited on newer silks, having to put up with the diminutive SC title while a bunch of (ageing) silks got to retain their exclusive status as the last of the QCs, sounded to the objective ear like the playground whinging it really was, and anyway time was going to take care of the anomaly soon enough.
The old chestnut, which has resurfaced each time a state bar tries to bring QCs back, is that Australian SCs are commercially disadvantaged in overseas courts, because their title is seen as inferior to that of the QC, still appointed in the UK and other post-colonial jurisdictions (even New Zealand, the shame…). Pretty thin, but it’s the best they’ve got.
Still, it’s proved strong enough. The march back to royal forelock tugging began in Queensland in 2013, followed by Victoria a year later. In both states, the silks can choose which title they individually prefer. Almost all have elected to be QCs.
Commonwealth Attorney-General George Brandis announced in 2014 that he would be bringing back QCs to the federal realm as well, although none have actually been appointed since the Howard years.
Now, the South Australian government has announced that it’s turning the clock back too, after intensive lobbying of the new Liberal government by the local bar. This has caused, in legal terms, somewhat of a shitstorm, pitting the SA Supreme Court against the bar and the government. The chief justice has said that the change stands to undermine the independence of the Court, the body which appoints senior counsel.
The problem is that, under the new law (assuming it passes), existing and future SCs appointed by the court will be able to apply to the government to change their title to QC, if they want. The chief justice sees this as a scandalous interference, and warns that his judges might start demanding undertakings from candidates for SC status that they won’t try to become QCs.
If that all sounds to you like a turf war in a kindergarten sandpit, that’s because you don’t understand just how deeply important these questions are. To barristers.
Does it really matter whether senior barristers are called SCs or QCs? Or Grand Poobahs? No, not to non-lawyers nor to any aspect of the proper functioning of the legal system. It’s fine of course, for the members of the bar to care deeply about it, and hardly surprising for a section of society that still wears an item of clothing called a jabot and doesn’t find it at all bemusing.
It’s not fine that their obsessions over interchangeable titles occupy a minute of the time of parliaments or courts. It’s a royal waste.
Grand Poobahs would be best!
Agreed.
A genuine question for the author: in the event of ERII’s death do the QCs automatically become KCs – or do they retain their original designated title?
It’s my understanding Zut, that on the death of the queen, all QC’s will automatically become KC’s, but the SC’s will stay SC’s unless they go through the “change title dance.”
Thanks Paddy & Arky.
In the case of the gender changing, if the old title was retained there could be a new level of oneupmanship ie: the old title of QC would denote seniority & experience to differentiate from the KC newbies.
They change, assuming the next monarch is a king (pretty safe bet unless there is a massive tragedy). Just as KCs changed over to being QCs when QE2 came to the throne decades ago.
“In [Queensland and Victoria], the silks can choose which title they individually prefer. Almost all have elected to be QCs.” This tells you a lot about the politics of those at the top of the legal profession. And goes some way to explaining the conservatism of magistrates and judges who are typically picked from senior barristers rather than senior solicitors.
No doubt much hot air has been pointlessly expelled in the QC/SC debate over the years, but there is a real issue at stake in South Australia which this article overlooks. The SA judges’ stated concern is not whether the position should be known as QC or SC, but whether appointments should be made by the court (as they are now) or by the government of the day (as is proposed). View might legitimately differ on that question, but it is not trivial. The case against political appointments is, on one view, the appointment of George Brandis as Queens Counsel.
Incidentally, the article does not acknowledge that moves to re-introduce the QC title in NSW – home of the largest group of barristers by some margin – were defeated some years ago and have not reemerged.
I think the barristers would respond that the waste was governments wasting their own time sticking their nose in to change QC to SC at all, in a move that basically thumbed the nose at the fact the Republican referendum didn’t pass, and they are as entitled to protect their patch as the next industry.
I must say that it doesn’t exactly look like the Federal government or the SA government is exactly overburdened with legislation to get to. The Federal government is barely sitting between now and the election as it is!
May I suggest head honcho, big cheese, numero uno, creme de la creme, big kahuna. All offered to help bring peace in our time.
Can I be so rude as to suggest that its antecedents dwell in their private school playgrounds and suggests they may not have left them.
Although whether appointed by courts or parliament is a substantive issue, which I would have thought the separation of powers doctrine might have input.
God forbid politicians getting any closer to the law then they already are.
Interesting legal item.My daughter is at present fighting in court to keep our four year old grandson away from too much influence by his dad.He pays nothing towards child care,resents her having 30% of their split on divorce even though she ran his business and promoted it .
The law appears to say that it cares about the child yet no one has met him and we have a set up whereby my daughter trained to be a child care owner .Her ex hates socialising has few friends but a partner who has two children one of whom aged 9is heavily on Autistic spectrum and can be agressive.
Our ex son in law drinks heavily and removes our kiddies clothes and replaces them with his own so now he will say daddy won’t let me do this or wear this and is intimidated.
I only wonder why the law is unable to see underlying issues with Narcissistic characters who can be charming ………? Can you cover this stuff because it is very common apparently ?