I rise to make a contribution. The shadow attorney has covered most of what I wanted to say in his contribution, but I think the member for Bragg has also eloquently put his issues. He did not hear a lot of this when he was on street-corner meetings, nor did he hear a lot about this at his local shopping centre. What we are seeing here today is the Attorney-General's portfolio bill that has raised a number of eyebrows in the legal fraternity. I know the shadow attorney has grave concerns about not only exactly what this bill will mean to our law representatives around the state but what it will mean to the representation we see in the day-to-day legal world.

I want to say that, when the Legal Practitioners (Senior and Queen's Counsel) Amendment Bill was enacted under the former Liberal government, with members of the Labor Party voting in support of it, the justices of the Supreme Court determined to promulgate the Uniform Civil (No. 3) Amending Rules 2020 that were published in the Gazette No. 99, dated 24 December 2020, pursuant to which legal practitioners in South Australia could again make application to the court for appointment as a Senior Counsel.

This was all preceded by extensive conferral between government, the court, the South Australian Bar Association and the Law Society of South Australia. Remarkably, the now Attorney-General, Kyam Maher MLC, moved an amendment to the bill to change the word 'shall' to 'may', so as to give government a discretion as to whether or not it would pass through an SC request that they be appointed King's or Queen's Counsel.

The legislation as passed removed any possibility of government interference or discretion in the process where a person appointed Senior Counsel exercises the choice to seek appointment as King's Counsel. The Legal Practitioners Act, as it stands, gives those persons who may be appointed Senior Counsel a choice to seek the postnominal KC. There is nothing in there that interferes with the process by which Senior Counsel are selected. There is nothing in there that inappropriately undermines the independence of the courts. There is no wicked problem needing a solution. The bill is utterly unnecessary.

The concept of the court appointing Senior Counsel was introduced into South Australia by then the Chief Justice, John Doyle, in response to the then Rann Labor government's refusal, for a political reason, to act on recommendations from the court as to who ought to be recommended to the Governor for appointment as the Queen's Counsel. At that time, I note, current Chief Justice Kourakis was South Australia's Solicitor-General, whose role is partly to provide advice to government. There was an unusual flurry of media reporting recently, identifying public comments from the Chief Justice in relation to these matters. Presumably, the Attorney-General and the government have given weight to the sentiment behind these comments.

There is the suggestion that counsel may benefit from the use of the term 'KC' rather than 'SC' when it comes to having the significance of their appointment understood, particularly in the context that the individual may have a client from a jurisdiction where the term 'KC' is a familiar one and 'SC' is not. In response to this suggestion, I quote the comment made on FIVEaa radio:

What is offensive about that…they do it for personal reasons, for personal exploitation of an office that is in the public interest.

The Advertiser summarised it in the following terms, and I quote:

South Australia's top legal eagles are appointed 'silk' to serve the public and not 'exploit' clients by using a royal title to charge more money, the state's top judge says.

I understand that a number of senior practising lawyers have taken significant offence to this suggestion, and it is disappointing that the government is going along with it. The truth is that there is no evidence that KCs charge more than SCs. On the contrary, a straw poll of solicitors' firms in South Australia revealed that persons with postnominal KCs did not charge discernibly more. In fact, in a number of instances, SCs charged more, and SCs in New South Wales charged even more.

It is also noteworthy that these assertions were never raised when the reinstatement of Queen's Counsel was the subject of extensive conferral and debate between October 2018 and September 2020. It is fundamentally wrong to suggest that the choice to use the postnominal KC rather than SC is motivated by a belief that KCs attract higher fees. Many who have made the choice in this state have done so having regard to clients' wishes, market dictates and intense competition with barristers interstate, where two of the three largest bars at the top level are overwhelmingly comprised of King's Counsel.

It is part of the role expected of a silk that at the criminal bar they will take briefs on legal aid, and at the civil bar they will take deserving cases for no fee or at a reduced fee, or on a 'no win no fee' basis, and many at the senior bar do so.

Two persons employed in the Crown Counsel section of the Crown Solicitor's Office also requested and were appointed King's Counsel, and it is obviously untenable to assert that those persons did so for personal gain, bearing in mind that their salaries are fixed in accordance with the Public Service scales. There have been a number of appointees to the bench who took silk after October 2020 and chose to be appointed Queen's Counsel. They are also worthy appointments in these capacities.

The Attorney-General, Kyam Maher, has stated that the change is sought to be brought in by reason that the use of royal titles such as King's Counsel are an historical anachronism and that it will bring South Australia into line with New South Wales, where there are only Senior Counsel appointments. It may be disappointing to the government, but the fact is that South Australia remains a constitutional monarchy. We are not a republic. South Australia remains a constitutional monarchy and until the state or the commonwealth becomes a republic, references to the monarchy are in fact not anachronistic.

Both the Attorney-General and the Chief Justice have sworn oaths. Those oaths are of allegiance to Her or His Majesty. As to the second, it is critical to understand that the system in New South Wales for the appointment of Senior Counsel is fundamentally different to that in South Australia. In fact, New South Wales appointments of Senior Counsel are made by and in accordance with a detailed procedure of the New South Wales Bar Association.

The Supreme Court of New South Wales and its justices are not the appointors of Senior Counsel. Accordingly, it is simply false to suggest that the change is somehow to bring South Australia into line with New South Wales. The postnominal KC apply in Victoria and Queensland, where there are collectively 381 King's Counsels. There is no legal argument for this bill.

The bill will do nothing for the constituents of Chaffey. The bill should not be a priority for this government. The fact that the government has prioritised it tonight is baffling and points to their terrible priorities. This house should oppose the bill. As members on this side have stated on a number of occasions: why tonight? Why have we pushed important priority bills to one side to bring this Attorney-General's portfolio bill into this house tonight? We are sitting here tonight until it is done. The question is why, and no-one has given me an answer, particularly the government.

I think the government should rethink. I think the government has a duty to the people of South Australia to be honest and to reconsider what pushing this bill through at a late stage really does mean to the people of South Australia.


speeches feature