QC or not to QC … That is the question before former Yarraside judge Murray Kellam … The findings are unlikely to surprise … Most want to keep the sacred trinket … However, some call for the scrapping of the entire silk system 

FORMER Yarraside judge Murray Kellam is still slogging his way though the submissions that have poured into his review into the royal furbelow bestowed on Vic’s briefs. 

Overwhelmingly, the submissions are in favour of the plumage and all the usual arguments are trotted out – it’s a great marketing tool, it’s a recognised “brand”, the Asians love it, nobody knows what an SC is, not to be a QC is uncompetitive, it’s a matter of choice … blah, blah, blah. 

The submissions don’t seem to be available on the bar’s website, or certainly they cannot be readily located – which is a crying shame because the amusement factor is lost. 

One submission that has fallen into Justinian’s in-tray comes from Len Hartnett, Laurence Maher and Greg Barns. All are members of the Vic grill, and Barns is on the interstate list because he also has chambers in Van Diemen’s Land. 

The Hartnett-Maher-Barns submission to Kellam puts a forceful minority view – opposition to handing out the gaudy bauble to barristers. Others submissions were recently mentioned in the Financial Review.  

Hartnett-Maher-Barns go further. They would like to see an end to the division of the bar between senior and junior counsel – something that is supported by the right-wing Adam Smith Institute. 

“Few reasons of any substance are advanced to justify the existence of silk. Comment generally centres upon administrative convenience with praise for the  excellence of those who hold the office. Little is said about its value as a contribution to the effective dispensation of justice. Criticism of the system has been met with the bland assertion that silk are an important element in the provision of legal services and the appointment of high court judges.” 

Hartnett-Maher-Barns submit that there should be a true market, where advocacy services are priced according to merit, not on the basis of post-nominals, “conferred upon them by an opaque process that should deal explicitly with the needs of our clients”. 

An example was given where a state government agency decided it needed a silk’s advice to rebut an opinion from another lawyer about its powers under the governing legislation. 

The agency paid $7,000 of taxpayers’ funds for a seven page advice from a silk. When asked why it had not used more reasonably priced, un-silked counsel, the reply was that it needed the advice to be more “authoritative”. 

This, said Hartnett-Maher-Barns, is “nonsense”. 

“We note also it is antithetical to promote the idea of silks as some form of superior legal creature when the law professes to treat everyone equally.” 

Ordinary citizens in the street would regard the return to the QC designation as further evidence that “lawyers are living in the past”. 

They add that there “not one shred” of evidence to support the argument that legal consumers in Asia prefer QCs. Certainly in Singapore and Hong Kong, QCs have been replaced with the appointment of SCs. 

Kellam’s inquiry came about after the Labor government was elected and the attorney general, Martin Pakula, waved through the batch of QCs who had already been most recently selected, but added that the bar should conduct a review about the future of the the patent leather letter.  

The reemergence of queen’s counsel in Victoria came about as a result of a putsch by monarchists on the bar council who colluded with a tired and flaccid Liberal AG, Robert Clark. 

It is expected that Pakula won’t strain himself to take on the bar about this issue. He’s more interested in his Racing portfolio and the Kellam report is unlikely to surprise. 

It’s simply a way to keep a status obsessed bar off his back.