Peter A Clarke

Surely John “Don Quixote” Riordan knew the Bar Council wouldn’t budge on his proposals to turn a light into the darkness that is the silk appointment process.  Riordan sent on 20 February the Chief Justice and to just about everybody in legal community Australia.  It has been released to just about every barrister in Victoria.  It reads:

The Hon Justice Warren< ?xml:namespace prefix ="" o ns ="" "urn:schemas-microsoft-com:office:office" />

Chief Justice

Supreme Court of Victoria

 

 

Dear Chief Justice

 

I write regarding last week’s extraordinary and secret intervention by the Court in the ongoing debate regarding the process of ‘Silk’ selection.

 

The debate has taken place over the last two years.  It has been a public and open one.  It has extended to the entire profession.  It has been the subject of considerable press coverage.  Not surprisingly, the general reaction has almost universally been in favour of changes to the system, and, in particular, for the provision of transparency.

 

There has been an ominous quiet from the Court.  It has not participated in the debate.  It has not sought to defend the system.  It has not condescended to reasons.  All correspondence has been forwarded to the Court without response.  The only reaction has been a letter advising that the Court would await the Bar Council’s determination.  It has not.

 

The Bar Council has resolved to consider the proposed changes to the selection process at its meeting next Thursday, 22 February 2007.  It had been anticipated that the Council would adopt contemporary standards and resolve to implement the changes sought.

 

However, the Court has now moved.  Not to give reasons.  Not to justify the system.  Not to join the debate.  Rather, it has acted to impose pressure on the Bar Council to reject change, irrespective of the merits.  Last week, it secretly summonsed the Bar Council executive to the Court.  There, they were told that the Court would not tolerate change;  the Court got the selections right; the Council would show loyalty to the Chief Justice and reject the proposed changes.

 

This extraordinary interference cannot be justified.  It smacks of the approach which might have been expected in the 17^th century when the system was born.  However, it is consistent.  The Court’s secrecy in the selection process is now demonstrated in its defence of the system. 

 

It might be considered that the Court is not suited to this role.  There is a real risk that its approach, so out of contemporary kilter, will bring the Court into disrepute.  It is not necessary or desirable for the Court to determine selection.  It is not part of its judicial role.  This debate relates to an administrative function in respect of which it is amenable to criticism and judicial review.  The selection process is an inappropriate and impossible one for a Chief Justice.  The United Kingdom and New South Wales models indicate this is so and have removed the Court from the selection.  It is difficult to comprehend objection to change in the light of the comprehensive enquiry in the United Kingdom which has embraced change well beyond that sought here.  South Australia is reviewing its position.

 

For the moment, the immediate concern is for the integrity of the deliberations of the Bar Council which meets on Thursday.  There is enormous allegiance to the Chief Justice, irrespective of the capacity in which she speaks.  The members must be allowed to decide these matters independently and by reference to contemporary standards.  It may be too late.  However, the Court should take immediate steps to relieve the Council of the pressures which have been brought to bear upon it.

Brave words, perhaps even foolish.  Putting accusations to the Chief is a great way of putting yourself in the advocacy dog box.  There is one positive.  A reasonable apprehension of bias application before the Chief has got to have a running start. 

What is so disappointing is the inept way in which the Bar has handled an issue which surely requires a proper review. At week’s ended with the Bar Council did their best Easter Island thing in “unanimously endorsed” this byzantine process.  The chair posted the following pithy statement on the Vicbar web site:

• Review of the Process of Appointment of Senior Counsel On 22 February 2007, the Bar Council unanimously resolved to confirm its support for the current process of appointment of senior counsel by the Chief Justice.  

Put aside the pros and cons of the issue, of which there are many. Look at the politics of it all.  Why doesn’t the Bar set up a review, consultation maybe and actually talk to the media about the pros of the process.  Its not like the 4th estate doesn’t take an interest.  The Australian goes nuts over the issue  and almost hopes it will collapse under its own weight (see Merrits article about the South Australian silks).  Merritt has a thing about barristers and what advocates do (see Media Watch’s analysis of his ridiculous piece on the release of Jihad Jack Thomas).  The Law Report had a run past the issue in October.

Next Friday’s Prejudice section will have Merritt ruminating and raging in equal parts.  Why not the Bar is such an easy target.