THE APPOINTMENT OF SENIOR COUNSEL IN WESTERN AUSTRALIA THE LAW SOCIETY OF WESTERN AUSTRALIA Final Paper Prepared by the Executive of the Law Society of Western Australia for consideration by the Council of the Law Society of Western Australia 21 November 2012 Table of Contents Introduction .............................................................................................................. 3 Background .............................................................................................................. 5 2011 Ad Hoc Committee on the Appointment of Senior Counsel and Further Call for Submissions ................................................................................................................... 5 Council Seeks Consultation after Receipt of the Ad Hoc Committee’s Discussion Paper ............................................................................................................................... 7 List of Submissions Received ....................................................................................... 8 Structure of this Final Report ........................................................................................ 9 Current Process and Criteria for Appointment of Senior Counsel in Western Australia .................................................................................................................. 10 Historical Overview ................................................................................................ 14 The 1980 Clarkson Committee Report ........................................................................ 15 The Criterion of Eminence ........................................................................................... 24 The Criterion of Availability ......................................................................................... 25 The Criterion of Freedom in Mode of Practice ........................................................... 26 Applying the Criteria to the Style of Practice ............................................................. 27 Clarkson Committee's Recommendations Concerning Criteria ............................... 29 1996 Law Society Review ............................................................................................. 30 1999 Proposed Amendments by Attorney General Peter Foss ................................. 32 2001 Labor Government Amendments ....................................................................... 32 Process for Appointment of Senior Counsel in Other Australian States and Territories ............................................................................................................... 34 The Australian Capital Territory .................................................................................. 34 New South Wales.......................................................................................................... 37 The Northern Territory ................................................................................................. 45 Tasmania ....................................................................................................................... 47 South Australia ............................................................................................................. 50 Victoria .......................................................................................................................... 55 Queensland ................................................................................................................... 64 Overseas Jurisdictions .......................................................................................... 69 New Zealand ................................................................................................................. 69 England and Wales ....................................................................................................... 74 Discussion: Submissions Received by the Society in Relation to the 2011 Ad Hoc Committee Discussion Paper ........................................................................ 81 Support for Continued Law Society Participation ...................................................... 81 Criteria for Appointment .............................................................................................. 81 The “Practice Discrimination” Argument ................................................................... 83 Improvement of the Process ....................................................................................... 84 Recommendations to Council ............................................................................... 86 Why these recommendations? ............................................................................ 87 The Appointment of Senior Counsel in Western Australia Recommendations of the Law Society of Western Australia Page 2 Introduction 1. In May 2012, the Council of the Law Society of Western Australia (Council) held a Special Council Meeting to consider the position of the Law Society on the appointment of Senior Counsel in Western Australia. 2. This meeting arose after a lengthy period of consultation with Society members and relevant stakeholders (discussed in detail below). Its purpose was to consider a Draft Policy Paper prepared by the Executive of the Law Society of Western Australia that outlined the history of the appointment of Senior Counsel in Western Australia, as well as the current process for appointment of Senior Counsel throughout Australia and internationally. 3. Whilst no final decisions were made or recommendations passed at the May 2012 Special Council Meeting, the Council requested that the Executive re-draft the Draft Policy Paper prepared for the Special Council Meeting and prepare a Final Paper to enable that Paper to serve as explanation of the Council’s position to third parties and to take into consideration the many issues discussed at the May 2012 Special Council Meeting. 4. In summary, the conclusions articulated at the May 2012 Special Council Meeting as important and arising from a process of consideration, consultation and debate in relation to the appointment of Senior Counsel in Western Australia were as follows: 1. The Society continue to support the retention of Senior Counsel in Western Australia. 2. The Society continue to support the criteria for appointment listed in paragraph 4 of Practice Direction 10.3. However, the Society recommend that the Chief Justice of Western Australia add a further element of “leadership in the practice and ethics of law” to the list of criteria in the Practice Direction. 3. The Society recommend to the Chief Justice of Western Australia that appointment of Senior Counsel continue to be open to solicitors and barristers and that the criteria for appointment be modified to ensure non-discrimination on the basis of mode of practice. The Appointment of Senior Counsel in Western Australia Recommendations of the Law Society of Western Australia Page 3 4. The Society continue to support the current appointment process and recommend to the Chief Justice of Western Australia that the Presidents (or their nominee) of the Law Society of Western Australia, the Western Australian Bar Association and Women Lawyers WA be added to the Chief Justice’s Consultation Committee. 5. The Society recommend to the Chief Justice of Western Australia that paragraph 13 of Consolidated Practice Direction 10.3 be amended to require all applicants to address the criteria in paragraph 4 and to provide at least three referees in their application. 6. The Society amend its Protocol for the Appointment of Senior Counsel to include a member of the Young Lawyers Committee who is also a member of the Law Society Council. 7. The Society recommend to the Chief Justice of Western Australia that unsuccessful applicants be advised by the Chief Justice in writing of the reasons why they were unsuccessful. 5. In substance, all of these points reflect the Council’s objective that the Law Society should be a leader in ensuring that the processes for appointment remain relevant and consultative. 6. This Final Paper has been prepared by the Executive of the Law Society of Western Australia for the consideration of the Council at its November 2012 Council meeting. It provides an overview of the historical and current criteria and appointment processes for Senior Counsel in Western Australia and compares these to the processes currently used in all other Australian and some overseas jurisdictions. Finally, it summarises submissions received by the Council and outlines in detail seven recommendations based on these submissions and discussions with relevant stakeholders throughout 2011 and 2012. Council will be asked to approve or reject these seven recommendations at its November 2012 Council meeting. The Appointment of Senior Counsel in Western Australia Recommendations of the Law Society of Western Australia Page 4 Background The 2011 Ad Hoc Committee on the Appointment of Senior Counsel 7. At a meeting of the Council of the Law Society of Western Australia held on 9 August 2010 the Law Society adopted, on an interim basis, a Protocol to assist the President (or his/her nominee) to meaningfully participate in the consultation process as required by paragraph 10.3 (18)(d) of the Consolidated Practice Directions. 8. The Society’s Protocol was introduced shortly after the WA Bar Association released its own protocol. 9. At the 9 August 2010 meeting, questions were asked