Legal Practitioners (Senior and Queen's Counsel) Amendment Bill

Second Reading

I am pleased to introduce the Legal Practitioners (Senior and Queen's Counsel) Amendment Bill 2020. The bill sets out a process by which legal practitioners who have been appointed as Senior Counsel by the Supreme Court can be appointed as Queen's Counsel.

The title of Senior Counsel is awarded to those members of the South Australian legal profession who have demonstrated outstanding ability as counsel, as well as leadership within the profession. The title came into use in South Australia in 2008 after the government of the day, in particular announced by the premier of the day and then acting attorney-general, the Hon. Michael Rann, ceased the appointment of Queen's Counsel in line with a consistent trend across other states and territories to discontinue it use.

I should say that at that time the premier of the day put out a press release, and subsequently a regulation was ceased to complete the process. It was not a matter that came before the consideration of the parliament in any statutory form. In recent years, however, a number of jurisdictions around the country have reinstated the optional use of the QC title, following strong support amongst the legal profession and indeed their advocates.

Unsurprisingly, therefore, the South Australian Bar Association has requested and indeed advocated for the QC title to be reinstated in South Australia so that its members who have been appointed by the Supreme Court as Senior Counsel have the option of seeking appointment as Queen's Counsel, further aligning with those other jurisdictions. I commend work also undertaken by the Law Society of South Australia who, as members may be aware, represents both solicitors and barristers, as we are a fused profession in South Australia. This society actually undertook a survey of all of its members in the legal profession in response to the question of whether there should be an option for a Senior Counsel to become a Queen's Counsel. An astonishing 67.26 per cent of the respondents answered in favour. I am advised by the Law Society that there were 843 respondents of the 3,444 admitted members of the profession.

At the time, I recall speaking to Ms Amy Nikolovski, who was the president of the Law Society at that time, and I think she remarked to the effect that it was the highest level of response to a survey that she had been aware of. The respondents to this survey identified, I think, an acknowledgment at that point that there was a clear merit in South Australia having a system of choice for those Senior Counsel appointed by the Supreme Court to be appointed as a QC by the Governor.

I confirm for members that the title of QC (Queen's Counsel) or KC (King's Counsel), as it may well be in the future, as some members would be aware, has been used in the past. Probably one of the most famous was Sir Robert Menzies, who was a King's Counsel and regular counsel in the High Court. I am sure there are many other worthy people; I cannot think of them immediately who they all were. It was way before my time. In my entire lifetime Her Majesty has been the Queen, and it is acknowledged that we have had a very long era of Queen's Counsel appointments.

In any event, for South Australia it is a key tenet of our justice agenda to build the capacity in our legal sector in this state. This includes the promotion of South Australia as a fantastic place for businesses in which to operate and to arbitrate, particularly with our world-class legal profession. I acknowledge that many of our senior bar travel interstate and internationally to undertake work, and that is a big pat on the back for the value and contribution made by our profession in South Australia.

I will traverse in the committee stage a number of the stakeholder interests in this important reform, and although, as I have said publicly, it has not been a bill that was the immediate priority of the government, we have had sustained advocacy from the relevant parties over the last two years. Legal advice has been sought to assist the parties in how they might progress any development of this nature and, as I will outline at a later time, there has been some accommodation of how we move forward in this regard.

I will identify the clauses of the bill for the members who have an interest in the progression. Clause 4 of the bill introduces a number of new sections to the Legal Practitioners Act 1981. New section 91 provides that the Chief Justice may, on behalf of the Supreme Court and in accordance with the rules of the court, appoint any legal practitioner as a Senior Counsel and that that appointment must be published in the Gazette as soon as reasonably practicable. This retains the ability of the bench to appoint those barristers whom they think are fit to hold the Senior Counsel title and whom they see working on a daily basis.

New section 92 provides that the Attorney-General of the day, at the request of the legal practitioner who is appointed as Senior Counsel, recommend to the Governor that he or she be appointed as Queen's Counsel, or indeed King's Counsel as the case may require into the future. Upon that appointment by the Governor in the Gazette, the legal practitioner ceases to be a Senior Counsel but will still take precedence in accordance with his or her former precedence as Senior Counsel, that is, in the order of appointment.

New section 93 provides that the Chief Justice can, on behalf of the Supreme Court in accordance with the rules of their court, revoke the legal practitioner's appointment as Senior Counsel or as Queen's Counsel. The new section 93 sets out how the practitioner can resign that appointment by written notice to the Chief Justice, and the Chief Justice must ensure that revocations and resignations are published in the Gazette as soon as practicable.

Schedule 1 of the bill contains transitional provisions that provide that new section 92 will apply to Senior Counsel appointed before or after the commencement of that section, and the new section 93 will apply to Senior and Queen's Counsel who were appointed before and after the commencement of that section.

This bill offers choice. It reflects a clear position of a majority of the legal profession in South Australia, and aligns opportunities for senior advocates with other jurisdictions already making this change. I do not seek to curtail that choice and the objectives of the bar and simply wish to allow, through this bill, greater flexibility to those appointed as Senior Counsel to either retain the Senior Counsel title or become a Queen's Counsel, depending on their own personal wishes.

To be clear: the choice is of the practitioner who has been elevated to the honour of Senior Counsel via a process under the supervision of the Supreme Court, under their rules, and they have the choice. If they elect to seek a Queen's Counsel appointment then I, as Attorney-General—and any subsequent attorneys-general—must present their name for endorsement and consideration by the Governor. I therefore commend the bill to members and seek leave to insert a copy of the explanation of clauses.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Legal Practitioners Act 1981

4—Insertion of Part 7

This clause inserts a new Part 7 as follows:

Part 7—Appointment of Senior Counsel, Queen's Counsel etc

91—Appointment of Senior Counsel

Proposed section 91 provides for the appointment of Senior Counsel by the Chief Justice of the Supreme Court.

92—Appointment of Queen's Counsel etc

Proposed section 92 allows a Senior Counsel to request that the Governor appoint them as a Queen's Counsel (in which case the Attorney-General must recommend the making of such an appointment by the Governor and the person will, on appointment, become a Queen's Counsel rather than a Senior Counsel).

93—Revocation and resignation of appointments

This proposed section allows for the revocation, by the Chief Justice, of an appointment as a Senior Counsel or as a Queen's Counsel and also allows for resignations from such appointments.

Schedule 1—Transitional provision

1—Application of section 92

Section 92 extends to persons appointed as Senior Counsel before commencement of the measure.

2—Application of section 93

Section 93 extends to persons appointed as Senior Counsel or as Queen's Counsel before commencement of the measure.

Debate adjourned on motion of Mr Brown.