Graham Kennedy: Lawyers and Conveyancers Amendment Bill — First Reading 
Graham Kennedy: Lawyers and Conveyancers Amendment Bill — First Reading 
[Volume:667;Page:14475] 
Dr KENNEDY GRAHAM (Green) 
: 
 Allow me to offer a particularly humble contribution to this debate on the Lawyers and Conveyancers Amendment Bill and let me state from the outset that the Green Party has not decided its final policy towards this bill and will not do so at this first reading. We are prepared to vote it through to the Justice and Electoral Committee and listen to the argumentation. That position was not taken lightly but after some deliberation the fact is that we are sceptical of some of the provisions in the bill and have our reservations on others. We wish to approach the issue with an open mind and we are prepared to explore it with the Government and other parties in the select committee. 
The bill aims to achieve three things: first to restore the rank of Queen’s Counsel and alter various provisions surrounding the position; second to alter provisions pertaining to the holding of non-voting shares in an incorporated law firm; and third to require a power of attorney to be given to another person to conduct the work of a barrister sole during periods of bankruptcy. It is the first of these aims pertaining to Queen’s Counsel that requires exploration. There are three issues at stake. The first is the title of the provision; the second is the potential eligibility for applying; and the third is the method of choosing an applicant. The proposed amendments would reverse three changes made by the Labour Government in 2006. In short this present bill would restore the title of Queen’s Counsel which was dropped by the Labour Government in 2006; it would limit eligibility to barristers sole rather than the general legal profession which Labour allowed; and it would remove the selection panel and allow the Attorney-General to appoint in consultation with the Law Society and the Bar Association. 
Let us consider each one. Why would the Government seek to restore the title of Queen’s Counsel and why would it seek to limit eligibility? The stated reason to revert back to Queen’s Counsel is to restore what the Government claims is the reciprocal relationship between Queen’s Counsel and the Crown. There is an expectation that a Queen’s Counsel will sometimes take instructions to act on behalf of the Crown. The qualities that have marked the rank of Queen’s Counsel will be preserved—that is the Government will continue to have confidence in the rank to appoint Queen’s Counsel and to assist with work such as ministerial inquiries where a degree of independence from the executive is thought desirable. 
The point was advanced by Mr Power when in Opposition back in July 2003 that the role of a Queen’s Counsel as an independent member of the Bar is to hold an office that allows one to challenge authority. It allows a Queen’s Counsel to challenge Governments and those who conform to the rules of our society. This is done in a way that gives one a certain degree of independence from such conformity. The fact that the title Queen’s Counsel reflects a colonial heritage is Mr Power believed to be of secondary importance. What was more important he claimed was that the role of Senior Counsel would be too readily available to members of the legal profession who practise in large law firms that undertake substantial commercial work for the Government whether it is a department a State-owned enterprise or a Crown entity. They act on behalf of the Government in those roles. 
The idea of a Queen’s Counsel Mr Power believed was to lift the individual barrister above the mire so that one is able to take on an unpopular case that others might turn down. A Queen’s Counsel is able to hold without fear the views of a client whom all others in a society may view as having committed wrongs whether civil or criminal and they would do this well before a judge or jury makes such decisions. Mr Power urged against removing the last vestige of a barrister’s independence at that level and replacing it with a label that could be assigned to any senior lawyer in any firm. There are some 12000 or so lawyers in the profession in this country I think but only a few hundred barristers sole. This may be a reasonable argument. The aspects of independence and credibility that enable any counsel to take on criminal cases on behalf of a defendant who may be vilified before a trial begins is of critical importance to the integrity of the judicial process. The Green Party has always supported this principle. Yet we remain unconvinced that the very title Queen’s Counsel itself is an imperative. We could perhaps accept the argument that the role should be preserved to barristers sole for the reasons outlined; it does not necessarily follow that the title Queen’s Counsel itself has to remain. What is the problem with retaining the title Senior Counsel while restricting it to barristers sole? 
The third issue has to do with the appointments process. Before 2006 the Attorney-General consulted with the Law Society and the Bar Association over potential candidates. The 2006 Act has the Attorney-General being advised by a panel comprising the Solicitor-General and four individuals drawn from the Law Society and the Bar Association. This 2010 bill would restore the status quo ante on the grounds that the panel system is unnecessarily rigid and it would be preferable for the Attorney-General to have greater flexibility. The difference may not be great between the two arrangements although a panel’s advice might be more appropriate rather than Attorney-General flexibility in itself. 
It would be useful to consider this argumentation in more detail. Where for example is the evidence offered by the Government that the panel system is rigid? And what do we mean by flexibility? Reasonable flexibility to some may be perhaps excessive licence to others. As I understand it there has been only one round of appointments to the position of Senior Counsel since the 2006 Act came into force. In 2008 seven individuals were appointed one of whom was Sir Geoffrey Palmer and we have heard a lot tonight about Mr Jack Hodder. That is scarcely displaying unacceptable rigidity. 
On balance our preliminary thoughts are as follows. Firstly we would be disposed to retain the title Senior Counsel rather than revert to Queen’s Counsel. Secondly we are prepared to listen to a more detailed argument from the Government to restrict the role to barristers sole rather than to the legal profession generally but we acknowledge the arguments advanced by Labour’s David Parker tonight for keeping the potential pool broader than purely Queen’s Counsel. Finally we tend to favour retention of a panel to accord advice to the Attorney-General in the appointments process. These are our preliminary thoughts. Based on this preliminary approach we will consider supporting certain aspects of this bill but not all of them. We are however prepared to see the bill go through to select committee with a view to engaging the Government in a constructive dialogue on the merits of each of the three issues at stake. We shall therefore vote for the bill through to select committee while preserving our option to support or oppose the bill in due course.