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The title of ‘Queen’s Counsel’, which was once reserved for the most distinguished barristers in the fraternity, was abolished by the Fahey state government in 1993 and replaced with the title of ‘Senior Counsel’.
Some believed that the sudden change was Fahey’s way of voicing his personal support for an Australian republic. In any event, the change signaled a move away from our English legal roots.
However, following the election of a new Bar Association executive council late last year – one which is predominantly comprised of ‘pro-QC’ monarchists – there have been murmurs that the title may soon be reinstated.
But does it really matter whether a senior barrister is known as a Queen’s or Senior Counsel?
Or is it nothing more than an ornamental formality?
The title of Queen’s Counsel is embedded in our English legal tradition, and many Commonwealth countries still use the term to mark out barristers who have: ‘obtained a level of experience, learning, seniority and standing within the profession as an advocate who merits recognition.’
Those bestowed with the title are referred to as ‘King’s Counsel’ during the reign of a male monarch.
The first King’s Counsel comprised Attorneys-General, Solicitors-General and King’s Serjeants. King’s Serjeants, also known as ‘Serjeants-at-Law,’ were an elite order of barristers who mostly worked in common law courts, and were given priority in court.
The title of Queen’s Counsel began in Elizabethan times and gradually superseded that of Serjeant-at-Law. The title became popular during the 1800’s, eventually replacing ‘Sergeant-at-Law’ altogether.
The title of Queen’s Counsel was retained in Australian states and territories following Federation in 1901, but from 1993 most jurisdictions sought to move away from our English roots, replacing it with the title Senior Counsel (or ‘SC’).
New South Wales was the first state to implement the change, followed by Queensland in 1994, the ACT in 1995 and Victoria in 2000. Other states took their time – Tasmania ceased appointing QCs in 2005, while SA replaced the title with Senior Counsel in 2008.
But recent years have seen a resurgence of support for the QC title, and Queensland reintroduced QCs in 2013, followed by Victoria in 2014.
Also in 2014, the Commonwealth Attorney-General confirmed that Commonwealth QCs would soon be reintroduced – less than four years after the first Commonwealth Senior Counsel was appointed. The move would allow current Commonwealth SCs to choose whether to adopt the title of QC.
And it seems that NSW is the latest state to consider reintroducing the title, with the formation of a committee to consider reinstating the rank of QC.
Many have mocked members of the bar who have thrown their support behind the reintroduction of the term, with current Senior Counsel Bruce McClintock suggesting that to do so would be ‘disingenuous and mask a reactionary political agenda.’
On the other side of the fence are a number of prominent barristers pushing for its return. They suggest that the rank of Queen’s Counsel is more widely recognised due to its long and rich history, both in England and Australia, and is an easy means to identify the creme-dela-creme of barristers.
Sydney barristers Andrew Martin and Jeffrey Phillips SC argue that, in contrast to the title of Queen’s Counsel, ‘the title of Senior Counsel (SC) has not taken root in the public mind and is not well recognised outside of the legal profession.’
Such comments have been backed by former High Court Justice Michael Kirby, who remarked soon after the rank was introduced that, ‘Appointment to a new rank, differently styled and differently chosen, of senior counsel would not carry the same respect, at least until it earned it. That would take time.’
His Honour also alluded to the growing demand for Australian legal services abroad and particularly in Asia, where royal connections are viewed positively, giving the rank of QC ‘brand recognition.’
It may also be a source of familiarity in countries such as Hong Kong, Malaysia and Singapore, where the term QC is used.
Queen’s Counsel in the UK are said to have profited from this recognition, with businesses in the Asia-Pacific choosing to ‘import’ QCs for difficult cases. Since Victoria and Queensland reintroduced the title, QCs in those states are reported to have seen similar benefits.
Whether SC’s in NSW will be able to reap such benefits is yet to be seen, but it certainly appears that the pro-QC camp may soon have its way.