There are very few esteemed barristers left in Australia known as King’s Counsel. The title of King’s Counsel or previously known as Queen’s Counsel was issued to barristers who attained the status before 1993 when it was replaced with the title of Senior Counsel in several Australian jurisdictions.
The Queen’s Counsel will now be called the King’s Counsel with immediate effect upon the passing of Queen Elizabeth II in 2022 and with the accession of His Majesty King Charles III.
A barrister is an independent specialist advocate and an educated advisor in law. Barristers train in a highly competitive environment and they are known for their experience and vast knowledge of the law. All of this can make a significant difference to the outcome of any case.
Barristers are valued for their advice and opinion. They have an in-depth knowledge of the Court and they have the necessary training and experience to anticipate likely outcomes. This makes barristers specialists in advocacy and litigation with an ability to quickly identify crucial points in a case. Well-thought-out advice can save clients not only costs but unnecessary trials as well.
Barristers are known for excellent judicial and non-judicial dispute resolution through negotiation, mediation, or arbitration. They assist clients with the entire dispute resolution process. Barristers work with a solicitor and the client to choose an appropriate strategy for the entire dispute resolution process. They also have experience in national and international commercial arbitrations and many of them are approved by national and international bodies.
A barrister can also provide representation and advocacy if any case goes to trial. They have:
· Specialised and detailed knowledge of their area of law
· In-depth knowledge of all the rules of evidence and the application thereof
· An understanding of litigation tactics
· The necessary skills to identify appropriate case preparation
· The ability to persuade the prosecution or the Court of the merits of a case
A client can obtain the services of a barrister through a solicitor. Solicitors work with barristers and they maintain a professional working relationship and can identify the most suitable barrister to deal with a case. A barrister has a duty to take on a case if they are available and there are no conflicts of interest.
A limited amount of barristers will receive the title of King’s Counsel or Senior Counsel based upon seniority, their level of experience, training, and their standing in the profession merits recognition. There is no such thing as a QC Lawyer or a senior counsel.
The British heritage is still evident in Australia and the legal system retains certain British influences from the monarchy. This is evident in the use of the titles of King’s Counsel and Queen’s Counsel.
A barrister will be bestowed with the title of King’s Counsel during the reign of a male monarch. The first King’s Counsel included an Attorneys-General, Solicitors-General, and King’s Sergeants. King’s Sergeants or Sergeants-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 it became popular during the 1800s. It eventually replaced the title Sergeant-at-Law altogether. During the reign of Her Majesty Queen Elizabeth II, the King’s Counsel was known as the Queen’s Counsel. The title reverted back to King’s Counsel after the Queen’s death earlier this year.
King’s Counsel is the highest level a barrister can reach in the legal profession. This title is reserved for the most distinguished barristers and it is a title of honour and respect. It is bestowed on barristers who have extensive experience. A barrister or King’s Counsel is at a pinnacle in their profession with an unmatched level of seniority. These barristers also make a significant contribution to mentoring young and high-calibre barristers in Australia.
A person bestowed with the title of King’s Counsel is also known as “Silk”. Senior barristers receive silk as a mark of their outstanding ability. These barristers have earned the right to wear special robes and this robe includes a gown made of silk. The Junior Counsel wears gowns made of cotton. Clients retain the services of silks based on the perception that they are the best of the best. Silks often charge a lot more money for their services and only the more affluent are likely to afford their services.
John Hubert Plunkett was the first person in Australia appointed to the rank of Queen’s Counsel in 1856. The title of Queen’s Counsel was retained in Australian states and territories following the Federation in 1901. The last person appointed and bestowed the title of Queen’s Counsel was Peter Michael Jacobson in 1992.
In 1993 most jurisdictions sought to move away from the English roots and replaced it with the title Senior Counsel. Most Australian jurisdictions including New South Wales changed this title to move away from the monarchy.
The title of Queen’s Counsel was abolished by the Fahay State Government in 1993 and it was replaced with the title of Senior Counsel. This signalled the start of the move away from the country’s legal roots in the monarchy towards republicanism. The name change was initiated by Premier John Fahey in NSW. It was a part of a collective push in the governments of Australia for the country to become a republic.
New South Wales was the first state to change from the Queen’s Counsel to Senior Counsel and other jurisdictions around Australia started to follow suit. Queensland implemented the name change in 1994, the Australian Capital Territory in 1995, and Victoria in 2000. Some of the other states took more time to adjust – Tasmania ceased to appoint Queen’s Counsel in 2005 and South Australia replaced the title Queen’s Counsel with Senior Counsel in 2008. Some States and Territories still use the title of Queen’s Counsel, now King’s Counsel.
Barristers appointed to the most senior of positions in some States and Territories are known as Senior Counsel, although those who were appointed before 1993 as Queen’s Counsel retain the link to the monarchy in name. These barristers are now known as King’s Counsel.
A more formal difference between the King’s Counsel and former Queen’s Counsel is a warrant signed by the relevant state governor. The governor is the formal representative of the sovereign. Senior Counsel receives a certificate issued by the relevant Bar Association or the judicature of the State Supreme Court.
Senior Counsel are barristers that specialises and works on particularly difficult or complex cases. Senior Counsel is a highly prized and coveted title. Barristers who earned this title have gained respect and made a significant contribution to the legal profession. Senior Counsel is seen by the judiciary, their peers, and the public as deserving of such recognition.
The public and the judiciary expect a Senior Counsel to provide outstanding services as a counsel to the administration of justice. The standing in the legal profession and the achievements of Senior Counsel justify this expectation.
The principles governing the selection and appointment of Senior Counsel are contained in the Senior Counsel Protocol. The Bar Association publishes a Guide to Practical Aspects of the operation of the Senior Counsel Protocol. This guide assists barristers who consider making an application for an appointment as Senior Counsel and informs the greater public of the process.
A barrister has to achieve the highest level of achievement in the legal profession before he or she can be appointed Senior Counsel. The announcements for Senior Counsel are much anticipated every year and receive widespread interest.
Who Selects the Senior Counsel?
A selection committee in NSW consists of:
· The President of NSW Bar Association
· Senior Vice President of NSW Bar Association
· Four other Senior Counsel nominated by the President and approved by the Bar Council
· An appropriate non-practising representative
· One non-lawyer community member
The Criteria for becoming a Senior Counsel
Applicants for Senior Counsel are judged on the following criteria:
· Integrity and honesty
Applicants have to exhibit some experience in the following:
· Experience in arguing cases on appeal
· Hold a position of leadership in a specialist jurisdiction
· Conducted major cases with another Senior Counsel representing the other party in the case
· Conducted cases with a junior counsel
· Mentoring in specialist fields of law
· Experience in alternative dispute resolution, arbitration, and mediation
· Sat in courts or tribunals
· Strong leadership skills to develop the diverse community of the Bar
· Contribution to Australian society as a barrister
Senior Counsel: Controversy and Criticism
The appointment and announcement of Senior Counsel can cause and have caused considerable controversy and criticism from the wider legal profession. The lack of transparency around the appointment process and especially the procedures and processes followed are criticised.
The list of appointment has been criticised in the past because it failed to reflect the legal profession as a whole. Some criticised the Senior Counsel predominately representing barristers with commercial litigation backgrounds, neglecting appointments from the area of criminal law.
The gender and ethnic imbalance in the Senior Counsel still receive criticism, but the legal profession is working to counter this with initiatives to lessen traditional male dominance.
Most States and Territories in Australia introduced the rank of Senior Counsel, even though the Queen was still the head of state. All of the Australian jurisdictions except the Northern Territory replaced the title of Queens Counsel with Senior Counsel in 1993.
However, Queensland reinstated the rank of Queens Counsel in 2013, with the change to King’s Council in 2022. Victoria followed suit in 2014 and South Australia reintroduced the title in 2019. In Victoria and South Australia barristers are appointed as Senior Counsel, but they can apply for the issue of letters to be called the now King’s Counsel.
States, Territories, and barristers remain on both sides of the fence on this matter. There has been some renewed interest to return to the old title of King’s Counsel. Barristers believe this title is synonymous with someone who reached the pinnacle of the legal profession. People have respect for the title of King’s Counsel and some people feel the term Senior Council does not have the same distinction.
Some people also feel the term King’s Counsel is widely used in other countries, such as parts of Asia and also in the United Kingdom. King’s Counsel can profit from the benefit of international recognition and represent clients in difficult cases in other countries.
In Australia, there is also an argument to have the title standardised nationally to avoid confusion. Some argue the title of Senior Counsel has not taken root in the public mind and it is not well recognised outside of the legal profession.
Most Senior Barristers in Queensland, Victoria, and South Australia are Queen’s Counsel and they all had to change their post-nominals to King’s Counsel after the death of the Queen. Only Senior Barristers appointed before the change to Senior Counsel in 1993 in NSW were affected.
NSW chose to not reintroduce the title of Queen’s Counsel and adhere to the title of Senior Counsel. NSW resisted the pressure to follow suit and change back to Queen’s Counsel. The silk selection by an independent bar in NSW ensures that the NSW Bar Association’s future leadership is moulded by the bar itself. According to the bar, this ensures a mature and independent legal profession.
Should the Australian judiciary system keep a link with the monarchy or should the move away from this title continue? Some legal professionals even find the appointment of a King’s Counsel or Senior Counsel as antiquated and irrelevant; others see it as a popularity contest and not a mark of true ability. Moreover, the debate continues and there will be pro-King’s Counsel and pro-Senior Counsel Supporters on both sides of the fence for some time.
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