The NSW bar’s senior counsel mechanism… A club with no rule of law … Smoke and mirrors … Failed applicants led up the garden path … Distortions imposed by secrecy … Sydney barrister, silk applicant and litigant against the bar association, David Smallbone, explains  

Its opposite is the method of centralised control, unconstrained by any law.

The NSW Bar Association adopts the latter method – because it can. As a private club, no one can stop it. I tried. It is a club that refuses to practice justice in its own house, its first object.

The association tells us in its Protocol that its hidden eminences are “those best placed to judge” us (Senior Counsel Protocol cl.3) and that this activity and its product provide an example for the public’s edification (cls.1&2) and an inspiration to junior counsel for self-improvement (cl.3).  

When appointments are announced, the public are referred to the Protocol, as if it were a rules-based process, grounded in objective merit according to defined criteria. 

This is misleading. The claims of meritocracy are not objectively established by so faulty and subjective a process. Experience shows that merit may be present or absent in those excluded as well as in those selected.

It is a contradiction to think of “judgment” through a selection tribunal proceeding in secret, on secret information, from secret informers, unconstrained by any laws or rules, to decide upon and condemn the competitive advantage, the reputations, standing, fortunes and happiness of their own people.  

Exchanging a vocation for justice, for uncontrolled power, is a disqualification to act as judges, let alone as the best judges, over one’s colleagues. 

It forsakes the mission of our profession. Its tendency, moreover, is chilling to that fearless independence which it is our duty to embody. It is a form of control – party discipline. 

I am not a barrister. I am “someone who has sued us.” Indeed, the association defines us as “Members of the Outer bar.” We are on the outside, not entitled to the ordinary rights of the inner circle. It is a case of “them” and “us”.

Yet, you may say, the Protocol prescribes criteria! [cl.6.] If you ask “which of the prescribed criteria was fatal to my application,” you can be told, as I have been, “it’s not the criteria”. 

Moreover, it was noticed by the Supreme Court in my second case, that the Protocol is written in water – it has no higher status than a resolution of the bar council.

Am I being too harsh? If so, it is strange that the association places such a premium on keeping comments on applicants secret from them – even to the point of extorting a waiver of the human rights protected by law in the Privacy Act, 1988. 

It is interesting to compare the waiver in the standard application form introduced after my case, to the announcement made at a CPD event in 2012 concerning the likely treatment of anyone who does not sign the waiver. 

Surely no one would fear to disclose constructive and professional criticism to an applicant. This would be necessary for improvement and helpful. 

Such is routine experience in training and assisting readers and, indeed, other colleagues through the “open door” policy and the ordinary relations that occur between colleagues.  

No. The subjection of applicants to the captivity of a rigid and unyielding secrecy supports a less generous inference. A dog has more procedural protections on Dog-Day in the Local Courts. No critic-objector has dared approach me directly, to look me in the eye. Do they even exist? Should one  suspect them at every hand?  

This denial must be removed from the life of our profession, if it is to be true to its purpose.

Is it any wonder that in the ballots to join the bar council relatively few have offered themselves for service?