Same tired, old untested stuff in the Kellam report recommending retention of Victoria’s QCs … Claims of economic value, getting rid of “confusion” and preserving independence … Evidence wanting … Creating a choice that isn’t a choice … Miracle cure for deeper ills
WHAT does Justinian think of Murray Kallam’s review of Yarraside’s craze for queen’s counsel.
Murray, a former county and supremo judge and prez of VCAT, was delegated by the bar to investigate whether Victoria should keep appointing QCs. The bar, in turn, had been asked to “review the office” by racing minister and part-time attorney general Martin Pakula.
Unsurprisingly, Kellam said the current system was pretty terrific, silks had a choice between SC and QC, and there’s absolutely no need to change anything.
Presumably in the light of this review the government won’t rock the boat. The influence of the report will spread more widely, because the pro-QC brigade in NSW will dust off the same old arguments in favour of the royal plumage and feed them to attorney general Gabrielle Upton.
More than half the report was taken up with a recitation of the history of QCs, the vital role they play in Victoria’s psyche, and comparisons with other jurisdictions.
Kellam found there was a “public interest” in appointing QCs because it was good for the Victorian economy, assisted silks getting a foothold in the Asian legal market, enabled them to compete with British QCs and to pitch for international arbitration work.
It also helped settle the “confusion” about SCs and where they stood, or sat, in the firmament.
All of those considerations are entirely predictable and have been trotted out ad nauseam by the pro-QCists.
However, to make a persuasive “public interest” case there needs to be evidence, statistics, research and other compelling original material – and here there was none.
For instance, on the economic benefits Kellam’s report swallowed a bunch of sweeping assertions from pro-QC submissions, including from the Vic bar executive itself.
“These [economic] advantages, it is argued, have a public interest component in addition to benefits which may flow to individual barristers …”
The report said that Victoria is positioning itself to be a “location of choice for international arbitration work” and again the QC designation “is said to best advantage the prospect of Victoria enhancing its reputation as a centre of legal excellence”.
“The presence of queen’s counsel in Victoria (to become involved in arbitration work as arbitrators and/or counsel appearing) has the capacity to assist in promoting Victoria as a seat for domestic and international arbitration work in the future.”
Then in a footnote, Kellam admits:
“This involves an evaluative judgment. It is acknowledged that the extent or nature to which the queen’s counsel designation may assist is difficult, if not impossible, to quantify with any precision.”
That could be said to apply equally to the other economic arguments advanced in the “public interest”.
For domestic work, it is claimed the QC title would advantage Victorian barristers compared to senior counsel in other states.
No facts were presented in support.
One of the underpinning proposition is that QC is a mark of distinction that “clients are solicitors are able to recognise and understand instantly”.
In the regional market the people making the call about who should be briefed are in-house counsel and solicitors – who know who’s who and the skills and quality of senior barristers.
Professionals in the loop don’t need a marketing tag to discern quality nor are they confused by solicitors who are special counsel and barristers who are senior counsel.
The report goes on to say that it would add to “confusion” if the bar went back to the previous system of appointing SCs only.
“Such a move would create incoherence.” Yet, almost in the next breath, Kellam concedes:
“The fact remains that irrespective of what decision is made by the attorney general, there will (unless some arbitrary and retrospective step was capable of being taken) remain a two tiered method of identifying the leading members of the bar in Victoria for the foreseeable future.”
And further:
“As a matter of fact and substance – at least in Victoria – queen’s counsel do not possess any different or superior skills to those of senior counsel.”
On the third limb of the economic argument, competition in the domestic market, the report says the fact that the NSW bar is reviewing the reintroduction of QCs indicates that interstate competitive forces must be bearing down on Phillip Street. This claim is made without surveying any of the other reasons behind the Sydney QC push – such as status, prestige, and better theatre tickets.
Kellam recognises that the case for retention of QCs is based on a “market perception”, a perception based on the misapprehension that QCs have a special, magical connection with the crown.
Apparently, it also helps persuade Asian clients, ignorant of anything better, to spend lashings of money on these “hallmarks of quality”.
To build a case on the suggestion that Melbourne silks are going to knock English QCs off their perch in the international arbitration game, or snitch work in Singapore or Hong Kong is encouragingly hopeful, but requires the suspension of reality to think rebranding the moniker will do the trick.
In any event, Victorian QCs plying their trade in these markets are already well known, small in number and probably don’t need any handle after their names at all.
It takes an extra dose of suspended belief to think that top SCs from NSW, or elsewhere, are going to be put out of business by newly minted Melbourne queens.
The Priestly report in NSW said that to reintroduce QCs would once again require the involvement of executive government and “a political element in the appointment process”.
All that went out the window when NSW SCs were introduced in 1993, with the president of the bar appointing silk.
Kellam goes to considerable pains to argue that there is no political involvement in the Victorian QC selection system, despite the fact that the attorney general has to recommend the list to the governor-in-council.
Even though the AG has not been involved in the selection process, which is formally done by the Victorian chief justice, alongside a panel of worthies that filters the applicants, there is still room for political meddling.
It cannot be guaranteed that the Victorian AG will forever be confined to playing a “formal role” in the appointments of queens.
Nonetheless, Kellam boldly asserts that, “the primary concern addressed in the Priestley report does not apply to the process of selecting and nominating queen’s counsel in Victoria”.
There were other sweeping propositions, such as rural and small law firms love QCs because it assists them take on “the big end of town”, that QCs assist in removing gender bias in the briefing selection process, and that there’ll be more work for junior barristers.
Again, we were left scratching to find hard evidence for any of this.
The clincher, invariably, is that when the current system offers is a choice between QCs or SCs, and what could be fairer than that?
This rather flies in the face of earlier concerns about getting rid of community confusion as to silk categories. It also ignores the fact that it is not really all that much of a free choice, because once the stampede for the royal plumage is on there is pressure to join for fear of being left behind.
It’s is only the talented, the secure and the noble who manage not to buckle.
The forces that are really at play here, and were not found in the report, is the shrinking work base of the bar, the rise of the solicitor advocate and the loss of the bar’s distinctive “branding”.
Something has to be done about all that – hence the cringe-worthy grab for the gilded orb.
See report Review of the office of queen’s counsel in Victoria