Roger Gyles’ review of the NSW Bar’s protocol for the appointment of silk will disappoint those looking for fundamental change.
That is probably no surprise coming from a retired judge who is steeped in the culture of the bar and is a former president of the association.
Possibly a review panel comprising a wider range of experiences, including those who are consumers of barristers’ services, might have produced a greater array of options.
Gyles recommends that the present structure involving a selection committee and a consultation group be preserved.
“I do not sense a significant groundswell in favour of radical change at the moment …”
He did say that it would be better if there was a uniform selection protocol involving all states and territories, but that’s not to suggest any change to the NSW protocol in the meantime.
His principle recommendation is that applicants for silk should be able to refer to their actual performance and practice “in a manner capable of being verified and assessed”.
Complimentary to that the consultation and assessment process should “be more closely tailored to the particular application than now”.
His other two recommendations were relatively marginal:
* “A distinguished person” who is not a barrister should be added to the selection committee, only to monitor the integrity of the system.
* That the requirement in the protocol that seeks applicants with qualities of leadership in a “diverse community” and who have made “a significant contribution to Australian society as a barrister”, be reconsidered (i.e. scrapped).
The principal complaints about the present system, identified by submissions and by Gyles’ own inquiries, are that it is biased in favour of commercial barristers and certain floors and a corresponding bias against common law and criminal practices.
The bias is said to extend to those having a connection with members of the selection committee.
There’s also a lack of transparency with no proper feedback to unsuccessful contenders.
None of these issues were weighed or analysed terribly thoroughly (the report was only sixteen and a half pages long).
Gyles was satisfied that when all is said and done the worthies get through and invariably are appointed silk.
“By and large, those appointed senior counsel are ‘within the range’ of those that ought to be appointed and have the necessary qualities.”
This implies that the current arrangements throw up the right results, regardless of the lack of transparency and the bias.
“I do not think it is practical to do anything about the complaint that the selectors chosen have not been sufficiently representative and are too narrowly based upon commercial chambers in Phillip Street.”
A panel that was more representative of different components of the bar would “increase the chance of compromise and horse trading”.
Nonetheless, a “prudent” president of the bar would take diversity into account when choosing members of the silk selection committee.
As things stand he found that the committee does a good job. It is diligent and has a sense of responsibility.
“In my view, the combination of experience, knowledge and responsibility inherent in peer group selection clearly outweighs the risk of bias.”
That’s a comforting finding.
The only thing to do is put a token outsider on the selection committee, in a non-deliberative capacity, charged with “observing the process to monitor integrity”.
Consultation and assessment
It was here that most of the criticism was directed.
The large consultation group comprising judges, solicitors and other barristers is only required to give a “yes”, “no” or “not yet” response.
This has “the appearance of superficiality”.
Gyles revealed that all the consultees receive is a list of names, with addresses of chambers and a broad statement of areas of practice for each applicant.
An applicant can provide more detail, “but that does not form part of the wide consultation process”.
A lack of ticks or the presence of negatives “are a significant factor in the decision making. The lack of reasons makes meaningful feedback difficult.”
What Gyles recommends is that applicants for silk should be able to demonstrate a case for appointment based of their actual practice and performance and that case should be scruitinised by the selectors.
It’s rather incredible that this has not been standard procedure.
The review says that this change should be instituted this year in order that the committee be better informed about the candidates.
Gyles nominated two interesting suggestions he received:
* That the silk process no longer be an annual event, but that applicants could be received and processed anytime throughout the year.
* The assessment of applicants be made over a longer period, anything up to two years.
Strangely, he did not offer any comment on these ideas.