Peter A Clarke

In the Federal Court decision yesterday in Smallbone v New South Wales Bar Association [2011] FCA 1145 (6 October 2011) is a topical decision for barristers interested in the silk selection process.  More importatntly it is an important decision on the operation of the Privacy Act.

It has drawn some interesting coverage in the press including the Australian’s David Smallbone’s win could change silk selection process which provides:

AFTER his Federal Court victory yesterday over the NSW Bar Association, barrister David Smallbone believes fundamental change to the system of selecting senior counsel is inevitable.

And because of the nature of his win, Mr Smallbone believes changes will need to be made in other states as well.

Judge David Yates agreed with his argument that he was entitled to inspect the information the bar association had assembled during consultations over his application for silk.

He will not be able to identify which judges and lawyers were responsible for those assessments but, for the first time, he will be able to tell whether those assessments have been based on errors of fact.

Soon after his victory, the bar association published this year’s list of new silks. While Mr Smallbone’s name was not on the list, the association had earlier agreed with his counsel, Tom Molomby SC, that this should not be seen as a rejection of his application.

Under the terms of Justice Yates’s ruling, the association has been restrained from making an adverse determination about his application until a week after he finishes inspecting the material assembled during consultations.

“It’s not everything I wanted — I did want the names,” Mr Smallbone said last night.

“But after inspecting it, I will be able to determine what lies behind their objections — to the extent that there are objections.”

He said the decision in his case meant it was time to change the selection system. “I have made this application under the Privacy Act and, in an ideal world, a properly formulated system would do more than what the Privacy Act requires,” he said.

He would prefer to have the selection system made far more transparent so candidates for silk would be able to understand why their applications were refused or accepted.

He said there was an important public purpose behind the institution of silk and it was therefore appropriate that selections should be accompanied by more rigour and transparency.

Under the current system, “you just cannot understand what it is that is supposed to be wrong with you”, Mr Smallbone said.

“You need guidance, otherwise you are going to wallow in the problem for years — if there is a problem — without guidance on how to fix it.”

While the NSW Bar Association offers feedback to unsuccessful candidates, Mr Smallbone said this was inadequate.

“You get told that you don’t have sufficient support in a certain group. But my experience was that there was a problem with the silks. And that just doesn’t help me. It doesn’t give me any meaningful insight.”