South Australian bar and CJ at loggerheads on new queenies … Judges opposed to appointment of new QCs … Adoption of the Victorian model … Court likely not to participate in the selection process … Unilateral government appointment of QCs … “Political silks” 

The bar successfully lobbied the government to revive the royal bauble for silks, with cabinet agreeing last month to adopt the Victorian two-step model of turning caterpillar SCs into QC butterflies. 

It would require the judges to sign-off on the SC selections before the appointments are retooled by the executive council as QCs. 

However, there are ominous signs that the government-bar plan won’t work as envisaged. 

The CJ made it clear last year in a letter to Ms Chapman that the judges would not be “co-opted” into facilitating QC appointments, indeed they could now withdraw from the whole process. 

They could even change the court rules which permit silks to charge at higher rates.  

It is understood that the chief justice wrote to bar president Mark Hoffmann QC (old model) and urged him to withdraw the QC submission to the attorney general, making it clear if that did not happen the judges would rewrite the rules on appointing SCs. 

Sources say that Hoffmann dug-in, replying with a frosty missive that the bar had no intention of surrendering and would fight on the battlements to restore the ancient trinket.

If the court declined to appoint SCs the Victorian model would be inoperative – leaving open the prospect of politicians unilaterally appointing silkies. 

In those circumstances the new QCs would be “political silks” by virtue of an “executive favour”. The CJ said in his letter to the AG: 

“I warn that, without the involvement of the judiciary, doubts may still arise as to the merit of the particular appointments.” 

Mark Hoffmann told Justinian he didn’t want to comment at this stage as there were many “moving parts” still in operation. 

We asked chief justice Kourakis about the correspondence with the bar association and whether the court would recognise QCs appointed unilaterally by the government. 

He says he will be in touch next week and we’ll update this story to include his response. 

Currently in SA, if barristers are anointed SCs by the judges they are required to give an undertaking not to seek appointment as QCs. 

Chief Justice Kourakis told Chapman, prior to cabinet approving the bar’s scheme:  

“It should not be assumed that if the SA bar’s proposal were adopted that the judges would facilitate it. The judges of the Supreme Court cannot be co-opted by others into a scheme of their making.” 

In the past, QCs were appointed by the executive council on the advice of the chief justice. 

Kourakis then made a fundamental point: 

“The judges will not give any such advice to the governor through the attorney general.”

He thought it would be a “curious development” if this prerogative were to be exercised on the application of individuals or the bar association, rather than the chief justice.  

Such is the extent of Kourakis’ opposition to new queens counsel that it is entirely on the cards the court will not recognise these appointments, as and when they are gonged. 

The SA government abolished the appointment of Queens Counsel in 2008, at the request of the then chief justice, John Doyle. 

Kourakis also raises the point that “contemporary constitutional independence of the courts” suggests that prerogative appointments are no longer valid. Further, such appointments would weaken the independence of the legal profession and the judiciary. 

The chief justice rejects the bar’s notion that the post-nominal SC is not as well understood as QC. 

“The judges have not noticed any such thing … [and] have not seen any evidence that litigants have been misled by legal practitioners in solicitors’ firms who describe themselves as special counsel.” 

In New South Wales, he said, the title QC is “more often seen as quaint than superior”. 

The argument that being badged as QCs will help barristers compete for work internationally is a great furphy. The Supreme Court in Hong Kong appoints SCs and the same post-nominal is awarded in Singapore by the Academy of Law. 

The bar’s arguments are tired and unoriginal. It’s more to do with pretension and improved status at the golf club. For Australians to be dazzled by a variegated version of royal plumage shows the extent to which he have failed as a nation to grow up. 

As for Vickie Chapman she has been an unattractive attorney general since the Liberals returned to power in SA a year ago. 

She has just avoided prosecution for breaching the ICAC legislation by revealing details of one of the anti-corruption commission’s investigations.  

Bret Walker SC, the royal commissioner investigating the Murray Darling Basin, also had trouble with her. On at least two occasions she refused to grant the commission an extension of time owing to a High Court appeal on the jurisdiction of the Commonwealth to block officials and public servants giving evidence. 

She publicly declared the royal commission was dropping the High Court action. 

Walker described her media statement as “wrong, discourteous and inappropriate” and asked that she withdraw it.  

Citizens who come into close quarters with Chapman come away with an unpleasant impression.  

CJ’s letter to the attorney general