In Australia, Senior Counsel is a person who is admitted to practise as a barrister and solicitor of the Supreme Court of the Australian Capital Territory and who practises exclusively or substantially as counsel (Senior Counsel SC, previously described as Queen’s Counsel (QC). The Senior Counsel Protocol, states that designation as Senior Counsel is intended to serve the public, whose standing and achievements justify an expectation, on the part of the those who may need their services, as well as on the part of the judiciary and the public, that they can provide outstanding services as independent barristers of the private bar, for the good of the administration of justice.
Moreover, Appointment as Senior Counsel should be restricted to Local Practising Barristers, Ordinary Members Class A, with acknowledgment of the importance of the work performed by way of giving advice as well as appearing in or sitting on courts and other tribunals and conducting or appearing in alternative dispute resolution, including arbitrations and mediations.
Process for appointment:
President of the Australian Capital Territory (“ACT”) Bar calls for applications for appointment as Senior Counsel after which the applicant (junior counsel) submits the application in writing to the President accompanying with an application fee as set. Applications for appointment as Senior Counsel may also be accepted from Government Practising Certificate Holders issued by the ACT Bar Association. Applicants must provide in respect of all cases, including contested interlocutory applications (but excluding directions hearings), in which they have appeared in the last 18 months, and if desired, a longer period:
(a) the name of the case and, if available, its citation;
(b) the name of the judicial officer, tribunal or arbitrator before whom they appeared;
(c) the name of any counsel who led them or whom they led;
(d) the name of opposing counsel;
(e) the name of their instructing solicitor; and
(f) a brief description of the nature of the proceedings.
The details required in (a) to (f) may be modified in alternative dispute resolution matters or otherwise when confidentiality required. The applicants must also identify not more than five members of the profession who are familiar with their recent work and qualities (references).
Criteria for selection:
The following qualities are required to a high degree before the appointment:
(a) learning: Must be learned in the law so as to provide sound guidance to their clients and to assist in the judicial interpretation and development of the law.
(b) Skill: Must be skilled in the presentation and testing of litigants’ cases, so as to enhance the likelihood of just outcomes in adversarial proceedings.
(c) Integrity and honesty: Must be worthy of confidence and implicit trust by the judiciary and their colleagues at all times, so as to advance the open, fair and efficient administration of justice.
(d) Independence: Must be committed to the discharge of counsel’s duty to the court, especially in cases where that duty may conflict with clients’ interests.
(e) Disinterestedness: Those who are in private practice must honour the 27 cab-rank rules; namely, the duty to accept briefs to appear for which they are competent and available, regardless of any personal opinions of the parties or the causes, and subject only to exceptions related to appropriate fees and conflicting obligations.
(f) Diligence: Must have the capacity and willingness to devote themselves to the vigorous advancement of the clients’ interests.
(g) Experience: Must have the perspective and knowledge of legal practice acquired over a considerable period.
Also, some or all of the following may be demonstrated by the Advocate’s practice:
i) Experience in arguing cases on appeal;
ii) A position of leadership in a specialist jurisdiction;
iii) Experience in conducting major cases in which the other party is represented by Senior Counsel;
iv) Experience in conducting cases with a junior;
v) Considerable practice in giving advice in specialist fields of law;
vi) Experience and practice in alternative dispute resolution, including arbitration and mediations; and
vii) Experience in sitting on courts or tribunals.
Additionally, demonstrated leadership in:
i) Developing the diverse community of the Bar; or
ii) Making a significant contribution to Australian society as a barrister.
Criteria for Cessation of appointment:
1. Whose name has been removed from the roll of persons admitted as lawyers in any Australian jurisdiction; or
2. Whose practicing certificate has been cancelled or suspended; or
3. Against whom a finding of professional misconduct has been made by a competent court or tribunal.
4. Who has been convicted of a serious offence as defined in the Legal Profession Act 2006, ceases to hold the appointment and is not permitted to retain or use the title of Senior Counsel.
5. A finding of unsatisfactory professional conduct has been made against the appointee by a competent court or tribunal; or
6. The appointee has conditions imposed on his or her practicing certificate.
Determination of Applications:
The Selection Committee must seek comments on each applicant from the following members of the private bar and the judiciary:
(a) All Senior Counsel and Queens Counsel Members;
(b) The President of the Court of Appeal;
(c) The Chief Justice of the Supreme Court of the ACT;
(d) Judges of the Supreme Court of the ACT;
(e) Master of the Supreme Court of the ACT;
(f) The Chief Magistrate of the ACT Magistrates Court;
(g) The Chief Justice of the Federal Court of Australia;
(h) The Chief Justice of the Family Court of Australia;
(i) Other senior members of any other courts or tribunals in which the Selection Committee considers the applicant to have practiced to a substantial extent; and
(j) The President of the ACT Law Society.
The President may, consult with as many other additional legal practitioners or members of the judiciary or other persons as is considered to be of assistance in consideration of the applications. He may also consult with any of the persons for whom comments have already been received, for the purposes of further discussion and clarification in considering the applications.
The President and Assisting Counsel shall, after taking into account all comments received, make a final selection of the proposed appointees. He shall then inform the Chief Justice of the Supreme Court of the ACT of his/her final selection and seek the views of the Chief Justice on the proposed appointment as Senior Counsel. He shall not appoint any applicant whose appointment the Chief Justice opposes. He then publishes the name/s of the successful applicants for appointment as Senior Counsel for that year in order of intended seniority. After publication of the list of successful applicants, any unsuccessful applicant may discuss his or her application with the President.