The Australian bar is going backwards. Shouldn't there be more women silks?
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Version 0 of 1. The silk season is underway. Hundreds of barristers on the eastern seaboard are queuing-up for the process of having their teeth, ankles and calves carefully inspected to see whether they are eligible for the silk gown, a category of barristerial thoroughbreds to which is attached improved status, fees and the chance of better tables at restaurants. Related: If George Brandis won't stand up for the rule of law, why is he attorney general? | Mark Dreyfus The applicants for silk in NSW are already known: 113 in all, of whom less than 10% are women, one of the lowest rates for female applicants in recent years, and this at a time when a special effort is being made to advance the career prospects of women barristers. Last year 15.7% of the silk applicants in NSW were women and the year before 13%. Off the 18 successful contenders in 2014, three were women. For some reason the bar is going backwards in relation to the prospective elevation of senior females. In fact, of the total number of NSW silks less than 10% are women, even through more than 20% of the bar is female and 66% of all law graduates are women. Only last week, the NSW bar released a new “equitable briefing” policy designed to encourage law firms to brief more women barristers and for senior members of the tribe to ensure women appear more frequently as their juniors. The new crop of silks will be announced next month, in Queensland before Melbourne Cup week, and in Victoria we usually know who made the cut by the last Tuesday of November. The silk system is a way of superimposing a home brand on what otherwise the market itself would naturally determine as the the best and brightest. In NSW, since 1993, there have been no appointments of queen’s counsel, the preferred nomenclature being the less royalist “senior counsel”. Since then, progressively, all states and territories followed suit and didn’t appoint QCs. One of the arguments was that the appointment of senior counsel removed the government, in the form of the governor-in-council, from deciding and approving who should be senior barristers. It was a mark of independence and even more importantly it was a step towards growing-up. Since queen’s counsel had no actual connection to the Queen (or counselling her) in any way, the main function of the post nominal was as a marketing trick. “Senior Counsel” was seen to be more republican and at the same time a more honest way of describing what was going on. But it didn’t take long before barristers pined for the good old days. They found themselves in a world where there were both QCs, remnants of the old appointment protocol, and SCs. They came up with the notion that this was confusing for the public, even though the public didn’t lie awake at night puzzling the difference between QCs and SCs. In all but the rarest cases the public doesn’t directly brief barristers, that is the job of solicitors and in-house counsel who know the difference and know who’s good and who isn’t. Jarrod Bleijie, the monarchist LNP attorney general of Queensland in the ill-fated Campbell Newman regime, suddenly decided in 2013 to reintroduce the appointment of QCs in that state. He was, after all, a man who loved pictures of the Queen on the walls of his office and his government even named the new law courts’ building in Brisbane after Queen Elizabeth II, a genuflection more commonly reserved for hospitals and mental institutions. In Queensland new silks did not have a choice between being appointed senior counsel or queen’s counsel – new appointees had to be queen’s counsel, full stop. The monarchists in Victoria were not far behind when in February 2014, after secret meetings between the top brass at the bar and Liberal party royalists, QCs suddenly resurfaced – although south of the Murray silks could choose to be SCs or QCs. 90% of Victorian senior counsel converted to queen’s counsel. It was a 95% conversion rate in Queensland. There was a stampede for the monarchist bauble, with 90% of Victorian senior counsel converting to queen’s counsel. It was a 95% conversion rate in Queensland, which explains how attorney general George Brandis overnight because a QC. Murray Kellam, a retired judge, recently completed a review of the QC appointment system in Victoria, concluding that everything was fine and dandy and the appointments should continue. The arguments he advanced weren’t accompanied by an overwhelming body of hard evidence, if any at all. It was claimed that QCs were in “the public interest” because the title was an economic benefit to Victoria and it would also allow Victorian silks to compete in Asian markets, despite the fact that none of the Asian countries with any common law tradition allow the appointment of QCs. There’s a notion that local QCs might have a firmer footing in Asian markets where top British barristers have a lion’s share of the arbitration and mediation work. That would be more beneficial to the personal economy of those few Victorian barristers who worked in Hong Kong and Singapore, but would have little effect on the economy of Victoria. There was even a pitch made that women barristers would be better off if QCs were retained, because without them “a possible unintended result” would be to “further entrench any pre-existing bias in the practice of briefing male barristers compared to female barristers”. How that works is not entirely clear. However, some of the submission received by Kellam suggested that it would be in the public interest to entirely scrap the distinction between senior and junior barristers. The Kellam report did make one important concession: “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.” Nonetheless, the royal contagion has spread to NSW, where last year a pro-QC ticket took control of the local bar association and is lobbying the government to allow a post-nominal choice, which seems to be at odds with the need to stamp out public confusion. The confusion, if it exists at all, would solve itself if things were left entirely as they are. Old QCs could doddle off and retire, ultimately leaving the silk field entirely to senior counsel. Related: Counsel to whom? Australian barristers run back to the Elizabethan bosom | Richard Ackland This rush for finer barristerial plumage accompanies the rekindling monarchist sentiment under the Abbott government, which gives the cringeworthy impression that Australia is still a branch of little England, full of 10 pound poms and God Save the Queen. A new campaign to relaunch the idea of a republic is underway, but it is unlikely to deflect the bars from their mission to reclaim what they see as lost prestige. The real reason senior barristers want to be QCs actually doesn’t have much to do with the public interest, or competing in Asia, or clearing up confusion. It’s more connected to the bars’ shrinking work base, the steady rise of the solicitor-advocate and the great law firms using their massive resources to provide the sort of advice and opinions that once were the exclusive preserve of the bar. Disruption is everywhere. |