BILL: Senior and Queen's Counsel

Today Mark outlined the Greens's opposition to this Government Bill which would reinstate the position of Queen's Counsel. Quoting from the iconic movie The Castle in his speech, Mark said that the legal profession has decided that they will be able to make more money if they are able to use the old royal moniker of Queen's Counsel rather than the more accurate but less time-honoured postnominal of SC or Senior Counsel.


LEGAL PRACTITIONERS (SENIOR AND QUEEN'S COUNSEL) AENDMENT BILL 2020

Of all the iconic Australian movies, the one that has added more to the Australian lexicon than any other is undoubtedly the 1997 classic The Castle. There would be very few people in this country who have not heard these phrases: 'Tell him he's dreamin', 'How's the serenity? So much serenity!', 'What do you call this, love?', 'Suffer in your jocks!', and the lawyer's favourite, 'It's the vibe.' Apparently there is a prize for any barrister who actually uses that phrase in a real courtroom, especially in the High Court, 'It's the vibe, Your Honours.'

I raise The Castle because there is another exchange in the movie that is less remembered but far more relevant to this bill. In the film, retired lawyer, Lawrence Hammill, played by Charles 'Bud' Tingwell, visits Darryl Kerrigan at his home and says, 'I don't think I introduced myself fully. I'm what's called a QC.' Darryl replies, 'Oh, a QC. You're one of those.' Darryl's wife, Sal Kerrigan, then asks, 'What's that?' Hammill responds, 'A Queen's Counsel.' Sal Kerrigan says, 'Oh, you counsel the Queen?' Darryl Kerrigan then chimes in with a fine bit of mansplaining, 'They're the lawyers rich people use, love.' To which Hammill replies, 'That's probably the most accurate way of describing us.'

At the end of the day, there is nothing more to this bill than the objective of enabling lawyers to extract more money from rich people. The legal profession, my original profession, has decided that they will be able to make more money if they are able to use the old royal moniker of Queen's Counsel rather than the more accurate but less time-honoured postnominal of SC or Senior Counsel. I appreciate that this bill has the support of the Law Society and the Bar Association. I understand their arguments, but I do not agree with them.

If there was no other consideration than simply doing what the legal profession wants then it might be a reasonable response to just shrug your shoulders and say, 'I don't really give two hoots what lawyers call themselves provided professional standards are maintained, services are affordable and they all have insurance in case something goes wrong,' but it is not that simple. As Australia emerges all too slowly from under Queen Victoria's skirts and inevitably, in my view, towards a republic, there are incremental opportunities that arise to symbolically and legislatively proclaim our true independence. In my view, the direction should be forwards, not backwards.

Many of us scoffed at former prime minister Tony Abbott's decision to go back to the age of knights and dames and to give the first new knighthood to a member of the royal family. That was a backwards step. Similarly, going backwards to designating senior lawyers as Queen's Counsel is in the same boat.

Some might scoff and say that reintroducing Queen's Counsel has no bearing at all on our nation's sovereignty or our independence. Legally, that might be the case, but symbolically it is very important. Recently, we have seen the 45-year-old palace letters released from the Australian Archives. The delay in releasing these important documents was largely due to legal interference from the palace in London.

Ultimately, it took a persistent historian, Jenny Hocking, and an Australian High Court decision before the letters were released. Whilst the letters do not appear to contain the smoking gun many had imagined, they do show that our then head of state, John Kerr, was far more open communicating about Australian constitutional matters with the hereditary British monarch than he was with the democratically elected prime minister of our nation.

Whether or not The Queen knew about the dismissal in advance is secondary, in my view, to the bigger story of the divided loyalties of her man in Yarralumla. I very much enjoyed Peter Goers' column on this topic in the Sunday Mail back in July. He said:

So an unelected foreigner, her representative, and a flunkey all discussed dismissing a democratically-elected Australian government. Then the Queen's representative, the governor-general, sacks the prime minister and dismisses the government and appoints another and then tells the Queen—although she was fully aware that this may happen—and did not advise against it.

So Sal Kerrigan in The Castle was on the money at least in relation to Sir John Kerr QC and counselling The Queen. Before the winter break I introduced a private member's bill to change the state constitution and the Oaths Act to remove the requirement for members of parliament and other public officials to swear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors according to law. It will not be lost on members that, having moved such a bill, it would be unlikely that the Greens would be embracing a return to Queen's Counsel. It would be inconsistent, to put it mildly.

I would now like to briefly address the issue of the amendments. Whilst the Leader of the Opposition said they would be explained in more detail in clause 1, this is my understanding, and I am sure I will be corrected if I have got it wrong. Firstly, Labor's proposed replacement section 92 ensures that no QCs or KCs can be appointed by the Governor, the Attorney-General or a minister. It does not prohibit the appointment by the Chief Justice, but since the Chief Justice does not have that power anyway, presumably there would never be any new appointments of QCs or KCs under this model. It looks to be an effective ban on QCs, which I would support.

Secondly, Labor has not indicated that it will oppose section 93, presumably because it relates to existing SCs, QCs and KCs and not just to newly appointed counsel. Incidentally, I also find it odd that under the government's model appointment of QCs or KCs is the prerogative of the Governor, but removal of the appointment is the prerogative of the Chief Justice. This makes sense for SCs where the Chief Justice has both roles of appointment and revocation, but I am not sure it makes sense for QCs and KCs. It is the opposite to other models regarding appointments or declarations where the rule is 'easy in, hard out'—for example, removal of a serving judge.

Thirdly, Labor's alternative amendment to section 92, which replaces the word 'must' with 'may', appears to be a fallback position, which has the effect of allowing any government that did not want QCs or KCs the ability to simply withhold the names and never present them to the Governor. In other words, new QCs would presumably be allowed under a Liberal government but potentially not under a Labor government if that was the policy of the day. Also, whatever shade of government, the attorney-general of the day could pick and choose whose name to put forward. That is my understanding of the amendments; no doubt the leader will tell me if I have got any of that wrong.

One final point I would make is that, as others have pointed out, the current British monarch is elderly and will not live forever and the next few in line to the throne are all male. This would mean that any Queen's Counsel created under this bill would presumably become King's Counsel or KC. The bill reflects this, but the term KC is a term that most people have never heard of, which does bring into question the name recognition argument raised by supporters of the bill. Whilst probably none of us have ever met a barrister who was a KC, most of us have heard of KC and the Sunshine Band, the iconic funk and disco band out of America.

What does this have to do with the bill? As it turns out, by sheer coincidence, if we go back to November 1975, to Remembrance Day, that fateful day in Australian constitutional history, we can find the link. In November 1975, The Queen's representative in Australia, Sir John Robert Kerr AK GCMG GCVO QC, infamously sacked a democratically elected government. Also in November 1975, KC and the Sunshine Band released their greatest hit, 'That's the way (I like it)'.

Going back to the past, going back to an age of deference to an unelected hereditary monarchy living in a foreign country is not the way I like it. To finish, I will quote that other great constitutional lawyer from The Castle, Dennis Denuto, who brilliantly sums up why this bill should be opposed. He said in court, 'It's the vibe of it…It's the constitution. It's Mabo. It's justice. It's law. It's the vibe and, no, that's it, it's the vibe. I rest my case.'