The ‘Queens’land Government has announced that it will abandon the post-nominal ‘SC’ (Senior Counsel) for the State’s most senior barristers and return to ‘the Queen’s Counsel regime’ (see here). In South Australia, the appointment of Queen’s Counsel has not been without controversy. Adam Webster reflects upon some of the controversies surrounding the appointment of Queen’s Counsel in this State and the tensions it sometimes caused between the Chief Justice and the executive. He also considers how reverting to the Queen’s Counsel regime might play into the republic debate.
In South Australia, the Queen’s Counsel appointment process previously required the Chief Justice to make recommendations to the Attorney-General and the appointments were ‘rubber stamped’ by the Executive Council. The former appointment process was a unique interaction between the executive and the judiciary. However, it was not without its problems. Elliot Johnston’s appointment in 1969 was blocked by Premier Steele Hall because of Johnston’s membership of the Australian Communist Party (see here). When Hall agreed to appoint all of Chief Justice Bray’s recommendations except Johnston, the Chief Justice withdrew the list. The standoff between the Premier and the Chief Justice was resolved the following year with a change of government. The new Premier, Don Dunstan, promptly approved Johnston’s appointment.
This was not the last time in South Australia that a nomination for Queen’s Counsel has caused controversy. In 2006 Premier Rann requested that the Attorney-General review one of the Chief Justice’s recommendations (see here). That controversy was, at least in part, responsible for changes in the appointment process in this State.
Like Queensland, Queen’s Counsel are no longer appointed in South Australia and ‘Senior Counsel’ are appointed by the Chief Justice without the need for approval of Executive Council. Presumably the appoint process in Queensland will not change and the recommendations will be made by the Chief Justice. However, the recommendations will need to be approved by the Executive Council. If South Australia ever considers following Queensland’s lead and reverts back to ‘the Queen’s Counsel regime’, efforts would need to be made to ensure that politics does not again influence the appointment process.
The Courier Mail reported that the president of the Queensland Bar Association has said that ‘the return to QC has positive, practical implications in distinguishing seniority’. Such a claim is questionable. One would have thought that the word ‘Senior’ would be sufficient to distinguish seniority. In South Australia the former Solicitor-General, Chris Kourakis SC, changed from QC to SC. Presumably he did so without any concern that the change in post-nominal would create confusion over his seniority. Flip-flopping between QC and SC (and back again to QC) may add to this confusion. Perhaps an entirely new post-nominal could be created that more appropriately describes the appointment: VGC (Very Good Counsel), VEC (Very Expensive Counsel), VSC (Very Senior Counsel) or, to borrow a line from The Castle, LRPU (Lawyers Rich People Use).
However, is this all a waste of time if Australia is to someday become a republic? In 1999, during the debate over whether Australian should become a republic and the subsequent referendum, I remember hearing many bizarre arguments as to why Australians ought to vote ‘No’. The best two were: first, becoming a republic would prevent Australia competing in the Commonwealth Games; and secondly, it would cost too much to change all the stationery in every Commonwealth Government department. The second argument was (incorrectly) based upon the assertion that the words ‘Commonwealth of Australia’ would need to be removed from all documents and replaced with ‘Republic of Australia’. As these arguments demonstrate, it is not difficult to take the attention off the more important and substantial issues surrounding the republic debate.
History shows us how difficult it is to amend the Constitution. Of the 44 proposals put to the people only 8 have carried. One wonders whether sometime in the future the potential loss of the post-nominal ‘QC’ might be another bizarre argument used against supporting Australia becoming a republic.
Adam Webster is a PhD candidate at the University of Adelaide.