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Legislative Assembly for the ACT: 1995 Week 8 Hansard (25 October) . . Page.. 2034 ..

MR CONNOLLY: The second arch monarchist amongst us is abolishing the office of queen's counsel. Mr Humphries did say something the other day to the effect of, "We have to do this because we want to give effect to our requirement that the executive government not be involved in the process of appointing queen's counsel". As far as I understand it, the appointment of queen's counsel is a Crown prerogative. The first queen's counsel appointed, my researchers tell me, was Sir Francis Bacon; so it goes back quite some time. It is a prerogative of the Crown that has, through custom and usage but not statute, been devolved to the Cabinet, to the Executive Council in those States that have a direct relationship with the Crown. In the ACT's case, it is a prerogative that has been taken, without any direct grant, to rest with the Cabinet of the ACT, the Executive created under the self-government Act, and properly so. By convention, the Executive acts on the recommendation of the Law Society to the Chief Justice and on the recommendation of the Chief Justice.

One of the reasons why some governments around Australia have moved to abolish queen's counsel, and particularly to abolish the involvement of the Executive in appointing queen's counsel, is an unfortunate tendency that has developed from conservative governments - not Labor governments - to tear up that convention, which is not surprising. As we approach 11 November and the twentieth anniversary, we are reminded that it is the conservative side of politics that, unfortunately, tends, for politically opportunistic motives, to tear up conventions.

The first occasion when a conservative government refused to follow the convention that they would appoint to the ranks of queen's counsel the nominee of the Law Society or the bar who had been approved by the Chief Justice was in South Australia. Elliott Johnston was a long-term member of the Communist Party and I remember as a child seeing him trooping around Port Adelaide, where I grew up, every Federal election. He always stood for the Communist Party and he always got about 2 per cent of the vote, or something less. He was a very eminent jurist in South Australia. He was recommended through the Law Society, the Chief Justice recommended his appointment, but the Liberal Government of South Australia of the day refused to appoint him, on the basis of his political beliefs. That was a most appalling breach of convention. That happened some 20 years ago or more, probably 25 or 30 years ago now. He was eventually appointed queen's counsel and he went on to serve with distinction on the Supreme Court of South Australia and in due course to play a very important role in the Royal Commission into Aboriginal Deaths in Custody. Further occasions occurred in the Northern Territory, where persons who had been very active in the Labor side of politics were recommended but were not appointed. It is unfortunate that it has been the conservative side of politics that has breached those conventions.

There is, however, a sound argument for not appointing queen's counsel. The office of queen's counsel is an anachronism as we move towards the end of the twentieth century. What has happened here since we imposed a moratorium when we were in office, as a result of the recommendations of Mr Humphries's then committee, the Legal Affairs Committee, where there was bipartisan support for the proposition that we not proceed with further appointments of QCs, is that the bar is following the practice of the bar in New South Wales and, on the recommendation of the Chief Justice, recognising the office of senior counsel, and that is a perfectly appropriate thing to do.

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