Yarraside bar ‘n’ grill … The brave and confident few who have withstood the stampede to queens counsel … Difficulty shaking off colonial branding … The petty rush for status … Statistics since 2015 … No hard evidence that QCs do better than SCs … Alan Zheng combs through the data
They are all listed on the VicBar website as Senior Counsel. It is not until early in the new year that we’ll see who among the magic 18 will have put their hands up for letters patent and the silken plumage of Queens Counsel.
In the last five years there have been 85 silken Yarraside appointments, of which 71 designed themselves QC (84 percent) while 14 stayed with the more organic SC badge (16 percent).
In this period, close to 90% of the 25 silks from Owen Dixon Chambers West took the QC bauble and 95% at Aickin Chambers.
Queens Counsel, at a time when the royals 16,000 kilometres away are clinging on for grim life, seems like a misnomer, not to say quaint.
The ruse about needing QC-badging to muscle into the Asian mediation, arbitration and advocacy market has run out of puff, what with the gilded post-nominal having no support from regional authorities.
The 400-year old honorific that conjures up nostalgic images of the empire, advice to the monarch and service to the crown, cuts no ice overseas where Australians seek to ply their trade.
Nonetheless, proponents at home have hammered the cause with vigour. More recently, QC enthusiast Jeffrey Phillips SC, an Abbott supporter from the Sydney bar, was again on his hind legs about the issue.
The actual driving forces behind the QC push are a better padded bottom line and status at the golf club.
There are some noteworthy cases where the royal bauble must have been of assistance in subsequent fruitful advancement. Michael Whitten took silk back in 2015 and was shortly thereafter a QC. This year, the Kingdom of Tonga – a former British protectorate – appointed Whitten as its new Lord Chief Justice.
ASIC’s resident bulldog Daniel Crennan QC took silk in 2016, became ASIC’s deputy chair in 2018, and now surpasses Chief Justice Kiefel when it comes to pocket money.
Of those who retained their republican SC credentials since 2015, two went onto to life at the County Court, and so did another three QCs.
The idea was that ultimately post-nominals would be uniform throughout the advocacy caper. Sadly, the level playing field notion has not materialised.
Tory governments were susceptible to blandishments from local bars to upscale the gong and in the spirit of lingering royalist sentiments it happened in Queensland under Conveyancer General Jarrod Bleijie in 2012 and Robert Clark in Victoria in 2014 – although the incoming Victorian Labor government went along with it.
South Australia got rid of QC appointments in 2008 but by this year had flip back after entreaties from QC hankerers at the local grill.
In a letter to royalist attorney general Vickie Chapman, opposing the reintroduction of the award, Chief Justice Chris Kourakis wrote:
“The appointment of Queen’s and King’s Counsel has its genesis in a time when the Crown was much more directly involved in exercising judicial power and influencing the decisions of the Judges of its courts.”
Nine SCs at Tasmania’s bar look as though they next might be up for brassier letterheads following a campaign, i.e. “survey”, launched by Fabian Dixon SC, of the Hobart and Melbourne bars. It’s unlikely the Willy Hodgman government would back away from the invitation.
It was in 2005 that Tasmania abolished the appointment of QCs.
Two states are holding out – NSW and WA – and two territories, the ACT and the NT. It was a Liberal attorney general in NSW, Brad Hazzard, who knocked back the last restless effort to restore Queenies, saying it was more important to build “community confidence in the legal system”.
NSW SCs overall are not struggling because of their branding, certainly not in comparison to Victorian, Queensland or South Australian QCs. In fact, anecdotal reports tell us that at the moment the senior bar in Queensland is not doing well. The extra plumage has not made a jot of difference to the economic well-being of QCs, while Brisbane SCs say they continue to do well.
Such is the state of Australia’s doomed struggle to enter the post-colonial era. Those who feel confident enough not to flaunt an anachronism and trade on a misnomer are the brave 10 percenters.
Back to Victoria. We have a glimpse of the overall position from former bar president Matt Collins’ email a year ago to QC lobbying Fabian Dixon SC.
At that point there were 276 silks in Victoria (excluding interstate members). Of those 32 are SCs. People were either appointed QC before 2000, or converted from SC from 2015.
Overall, Collins says, “almost 90% of our silks are QCs”.
Here’s how Yarraside silks self-selected from 2015 on …
More stories from Justinian’s archive on the frazzle about SCs and QCs