The not so smooth path to silken adornment
The Old Silk Road
This year saw 80 new silks anointed throughout the length and breadth of the Wide Brown Land – some with royal plumes in the Colonial jurisdictions and Senior Counsel in sovereign States.
Are we too top heavy with silks … how many are suffering … are they all at the top of the game … why did good people miss out?
These are the baffling questions on many lips.
The interviews the bar president conducts with refuseniks can be depressing affairs – with unhappy applicants emerging none the wiser.
One senior NSW criminal barrister who has been knocked back repeatedly over many years, presented a glowing reference from four retired High Court judges.
“Sorry, we only like to hear from current judges,” was the response from President Ruth Higgins in a strictly timed Zoom session – even though the current High Court is not polled as part of the process.
If anyone is unsuccessful three or four times, it’s the end of the Silk Road. They are triaged out and may as well go home.
Generally the response form that is distributed around Phillip Street with the list of candidates requires ticks in three categories: YES, NO and NOT YET.
On the grounds of privacy candidates are kept in the dark about feed-back and comments, so it’s impossible to challenge an inaccurate or unfair assessment.
As expected with such an opaque system it’s not exactly an exercise in natural justice.
The experience in NSW is that each member of the selection committee, composed of senior worthies, is responsible for handling a batch of applicants. They contact judges and other practitioners who ticked boxes, even people further afield who might have direct experience of the candidate.
Little credence is supposedly given to responses by members from the same chambers.
Apart from the selection committee, there is also a consultation group – at least that’s the case in NSW.
We’ve heard some harrowing stories from people directly involved in the process, including intense lobbying by senior members of floors who want their protégés elevated to silk, and marking down good candidates in preference to the advancement of favourites.
Forbes Chambers: top heavy with silks
If a judge makes a damning comment, it usually spells death. At one of the innumerable meetings it was apparent an elderly senior silk (male) was opposed to women applicants reaching the holy grail. Oddly, this was supported by a female Senior Counsel.
Last year the NSW list was swamped by successful candidates from two chambers: four from Banco Chambers home to the then vice president now president, Ruth Higgins; and five from Forbes Chambers, which has a criminal law specialty, where then president Gabrielle Bashir hangs her shingle.
36% of the successful candidates came form those two chambers. This year there was another successful candidate from Banco and two more from Forbes.
In toto, 41% of the members of Forbes Chambers are silks.
The letter of support from the four retired High Court justices for the unsuccessful criminal law advocate was not mealy mouthed. We can’t publish names or direct quotes, but they believed the candidate’s case for appointment was exceptional and deserving.
They were impressed by his numerous appearances in the court and pointed to other senior barristers who considered him to be an outstanding advocate.
It’s a mystery. Maybe the hex is in.
Mary Walker, a leading NSW and international arbitrator and mediator, has been unfairly passed over repeatedly, despite her stellar credentials.
Silken recognition does not extend to barristers who work outside the strict confines of the gilded cage.
David Smallbone, another frustrated contender, has sued the NSW Bar Association a couple of times alleging lack of fairness and transparency in the way silks are selected. He has had the bone pointed at him and is now a permanent resident of the Salon de Refuses.
One pathway to success is to clamber aboard a bar association committee or club and frantically wag your tail.
Among the essential criteria for appointment in NSW, according to the silk protocol, is a requirement to complete “at least two hours of harassment, discrimination and bullying awareness and complaint handling training …”
It might be thought that anyone requiring this course of instruction would automatically be unsuitable for silk.
Here is the bulky list of this year’s contenders from NSW and here are those who triumphed.
And, let’s not forget the protocol.
Glue pot
There has been a number of recent cases where judges or tribunalists have over enthusiastically relied on the application of Perkins Paste in assembling their reasons – leading to consternation higher up the food chain.
So it was most recently with Mohammed Maazuddin and the Minister, later to be untangled by Judge Val Gostencnik at the FCFC.
The appeal point was that the AAT member, Vanessa Plain of Vic’s Bar n’ Grill, was overly enthusiastic in pasting slabs of work from the Minister’s delegate, who cancelled a student visa because Mohammed failed to maintain his enrolment in a registered course of study in the required manner.
The applicant claimed this was unfair because his family has spent a lot of money for him to get his degree (Batchelor of Community Services); it would affect his personal and family life; and would be detrimental to the health of his mother and father.
His earlier efforts at a Batchelor of Business had been unsuccessful – he studied for two semesters and only passed one subject. It was then that he changed to the Community Services degree, and later he set his sights on a Diploma in Automotive Studies.
Member Plain was overly reliant on the delegate’s reasons, having pasted numerous passages into her own reasons, without acknowledgement or attribution.
Judge Gostencnik was not impressed. There was a failure by the tribunal member to exercise jurisdiction or to give independent and impartial consideration to the evidence.
His reasons painstakingly set out the extent of the poaching in columns headed Delegate’s Reasons and AAT’s Reasons. The text in each column is, with few exceptions, indistinguishable.
The Minister’s people contended that this is not controversial and for the most part it related to the factual background and summary of the evidence.
HH thought this was nonsense, finding that the totality of the applicant’s response had not been considered afresh.
“The overall impression gained from the analysis above is that the material findings of fact and the reasoning adopted by the Tribunal were that of the delegate, which were reproduced in the decision without attribution or acknowledgement.
“The Tribunal failed to bring its own independent mind to the review. Consequently, I consider the Tribunal failed to discharge the statutory task imposed on it to consider the matter on review for itself afresh, so as to make a decision it considered the correct and preferable one.”
Back it goes … start again.
Mohammas Maazuddin v Minister for Rejections and Refoulements
Moving on
ICAC Commissioner John Hatzistergos: Darrin’s former boss
While in the world of scissors and paste, it’s convenient to mention Darrin Moy. Many will recall that as the man in charge of “people, culture and communications” at the Federal Court, Darrin issued an Enterprise Bargaining Update to the troops, a slab of which was lifted bolus-bolus from an article in the Qantas magazine written by the unlamented Alan Joyce.
Previously, Darrin was the culture manager at Sydney Ferries. In October 2023 we had the sorry duty of reporting that Darrin and his bow-tie had a bust up with the court’s CEO and principal registrar, Sia Lagos.
He then landed at the NSW Independent Commission Against Corruption as the chief executive officer.
Now we discover he’s vacated that post and there’s no record of his new gig.
Michelle Ward was appointed ICAC’s Acting CEO in October. She’s also the commission’s executive director of corporate services and chief financial officer.
Could it be that Darrin and Chief Commissioner John Hatzistergos, the Grumpy Greek, fell out.
In 2017 there was a probing question at Senate Estimates about HR staff leaving the court following Darrin’s arrival as the people person.
“Mr Moy has been able to install four of his former colleagues from Sydney Ferries on high wages? Is this not a breach of standard APS practices, in terms of hiring on merit?”
Vroom, vroom
The Lubyanka – interesting underground
Concerned citizens are retailing news of sightings in the Federal Court’s Phillip Street carpark of a prominent journalist (he/him) having what seems like a friendly encounter with a Federal Court judge (she/her).
You’d think a rendezvous in the Lubyanka’s underground parking facility would be safe enough.
Apparently not, hence all the idle chatter.