Sonia Hickey* With the passing of Queen Elizabeth II and the accession of King Charles III to the throne, some of Australia’s most esteemed barristers – formerly referred to as Queen’s Counsel (QCs) – will now be called King’s Counsel (KCs)
KCs are appointed by the Australian Bar Association (ABA) and those who already have the title of QC, will automatically become KCs, with immediate effect. New appointments from now on, will be known as King’s Counsel.
What is a King’s Counsel?
There are very few KCs left in Australia – the title was only issued to lawyers who attained the status prior to 1993 when it was replaced with the title of ‘Senior Counsel’ in a number of Australian jurisdictions.
It is the highest level of the legal profession that a barrister can reach and it was bestowed upon professionals who had extensive experience, learning, seniority and standing within the profession and who, over the course of their careers, made a significant contribution to mentoring young barristers and progressing the calibre of barristers in Australia.
The change in name in the early 1990s was initiated in New South Wales by Premier John Fahey. At the time, it was considered to be part of a wider push in governments all over Australia, for the country to become a republic.
The titles of Queen’s and King’s Counsel reflect the fact Australia continues to have a British heritage – including a legal system strongly grounded in the United Kingdom’s Westminster system – despite the fact the monarchy has very little impact on our day-to-day lives.
New South Wales was the first state to adopt the change to ‘Senior Counsel’, and other jurisdictions around Australia eventually followed suit. This means that barristers appointed to the most senior of positions are now known as Senior Counsel, although those who were previously appointed as Queen’s Counsel retain the link to monarchy, at least in name.
That said, there has in recent years been a renewed interest in returning to the old title.
In fact, Queensland reintroduced Queen’s Counsel in 2013, followed by Victoria in 2014, and the title has also been reintroduced in South Australia.
The debate whether we should keep our links to the monarchy or move away from it continues.
There are a number of prominent barristers pushing for the return of the old, believing it’s synonymous with someone having reached the pinnacle of the legal profession and a term widely known and respected. They contend that the title of Senior Counsel does not have quite the same distinction.
Others have also pointed out that because the term is widely used in other countries – such as parts of Asia and also the United Kingdom, it has ‘wider recognition’ for those who have attained it.
In Australia, there’s certainly an argument to have the title standardised across the profession nationally, to avoid confusion.
Who selects Senior Counsel?
In New South Wales, SC appointments are made every year by a selection committee which is made up of:
- The President of the New South Wales Bar Association and the Senior Vice President of the New South Wales Bar Association,
- Four other senior counsel (Queen’s Counsel or Senior Counsel) nominated by the
- President, and approved by the Bar Council, not more than one of whom may be a
- member of that Bar Council,
- One person who is not a practising barrister but who by virtue of his or her
- qualifications is an appropriate person to be the non-practising representative on the
- Committee; and
- One non-lawyer community member
What are the criteria for becoming a Senior Counsel?
Learning: Senior Counsel must be learned in the law so as to provide sound guidance to their clients and to assist in the judicial interpretation and development of the law.
Skill: Senior Counsel must be skilled in the presentation, testing, evaluation and/or resolution of litigants’ cases, so as to enhance the likelihood of just outcomes and/or negotiated resolution in adversarial proceedings, whether in court or otherwise.
Integrity and honesty: Senior Counsel must be worthy of confidence and implicit trust by the judiciary and their colleagues at all times, so as to advance the open, fair and efficient administration of justice.
Independence: Senior Counsel must be committed to the discharge of counsel’s duty to the court, especially in cases where that duty may conflict with clients’ interests.
Disinterestedness: Senior Counsel have the duty to accept briefs to appear for which they are competent and available, regardless of any personal opinions of the parties or the causes, and subject only to exceptions related to appropriate fees and conflicting obligations.
Diligence: Senior Counsel must have the capacity and willingness to devote themselves to the vigorous advancement of the clients’ interests.
Experience: Senior Counsel must have the perspective and knowledge of legal practice acquired over a considerable period.
Applicants must also demonstrate some or all of the following:
- Experience in arguing cases on appeal;
- A position of leadership in a specialist jurisdiction;
- Experience in conducting major cases in which the other party is represented by Senior Counsel;
- Experience in conducting cases with a junior;
- Considerable practice in giving advice in specialist fields of law;
- Experience and practice in alternative dispute resolution including conducting or appearing in arbitration and mediation;
- Experience in sitting on courts or tribunals;
- Demonstrated leadership in developing the diverse community of the Bar and in contributing to Australian society as a barrister.