Silk for senator angers lawyers

AN award of legal silk to a Queensland Liberal senator who was left off the official short list and no longer practises law has angered leading lawyers and embroiled state Chief Justice Paul de Jersey in controversy.

AN award of legal silk to a Queensland Liberal senator who was left off the official short list and no longer practises law has angered leading lawyers and embroiled state Chief Justice Paul de Jersey in controversy.

The elevation of Senator George Brandis to the ranks of senior counsel prompted calls for a thorough audit of the secret selection process.

Senior sources told The Australian yesterday that Senator Brandis had been omitted from the Queensland Bar Association's short list of eight names that were put to Justice de Jersey for vetting and approval as senior counsel.

The promotion of Senator Brandis was surprising, because he had been knocked back when he made an earlier application in the late 1990s when he was practising full time as a lawyer.

And he has barely practised law since entering politics in May 2000.

An examination yesterday of the Bar Association's criteria for silk shows one of the key requirements is continuing experience at the bar.

"Unless there are exceptional circumstances, appointment as Senior Counsel will be restricted to practising barristers," the criteria state.

Senator Brandis, 49, tipped as a likely attorney-general if his most powerful ally, Treasurer Peter Costello, becomes prime minister, said he did not know the exceptional circumstances that led to his legal promotion. He was unaware of his omission from the short list.

"I'm no longer practising (as a barrister) in every regular sense of the word," he said.

"I still have my chambers but I sub-let them to a colleague."

Asked why he applied while a full-time politician, Senator Brandis said: "It just seemed an appropriate thing to do for a barrister of my seniority. It's a private matter and I applied in the usual course. I can't comment on my own merits. I don't have any criticism to make of the process."

Justice de Jersey defended the Brandis appointment as appropriate, but said confidentiality agreements prevented him from detailing the exceptional circumstances.

"I'm the appointer. It is an intensely collegiate process and I consult very extensively with my colleagues," said Justice de Jersey, who put forward three additional candidates not on the bar's short list who were granted silk along with Senator Brandis.

"It's a matter between the bar and the court and the applicant - I just cannot enter into it because of the confidential nature of the process.

"The fact is that George is a barrister of significant accomplishment and it was thought that notwithstanding his being largely out of legal practice, he would be an appropriate appointment."

But several senior lawyers yesterday condemned the appointment as evidence of a flawed system that urgently needed examination and overhaul in the interests of transparency and public confidence.

"It's not as if George has been darkening the doors of any courts since his last application for silk was rejected," a leading lawyer said yesterday.

"If he was deemed unsuitable for silk in the late 1990s, it is hard to see how his contribution to politics since is an exceptional circumstance."

Silks in Queensland earn upwards of $5000 a day, significantly more than junior counsel. The financial benefits that flow from having SC after your name prompted more than 40 applications for silk this year.

The bar's appointment protocols require Justice de Jersey to consult judges of the state Supreme Court, the chief justice of the Federal Court and the president of the Bar Association.

One of those whom Justice de Jersey has consulted in the past is Queensland High Court judge Ian Callinan. Justice Callinan's appointment on the High Court expires next September when he turns 70.

Prominent barrister and former Australian Republican Movement chairman Greg Barns said the appointment of a senior counsel with no recent courtroom experience "proves the silk system is obviously not about rewarding excellence at the bar".

"On what grounds has the Chief Justice made this decision?" Mr Barns asked. "Will he make those grounds public, because on the face of it there is no rhyme or reason."

But Bar Association president Martin Daubney SC said those on the list "are recognised by the judges and their peers as fine advocates whose learning, skill and abilities are widely known".

"The institution of silk is recognition of pre-eminence at the bar and the appointments made by the Chief Justice reinforce and strengthen that institution," Mr Daubney said.

The dispute is likely to be raised at the annual general meeting of the Bar Association in Brisbane tomorrow.