The smell of burning silk

The selection of silk in NSW is stymied ... David Smallbone makes progress ... Trying to get to grips with the accuracy and fairness of a secretive process ... Arab Spring comes to Phillip Street 

Smallbone: decision about his application for silk is stayedThe leadership of the NSW bar is confronted with the ghastly prospect of having to change its ways. 

The old order has been tipped on its head as a result of David Smallbone's success in the Federal Court. 

Smallbone gained partial access to the responses by members of the consultation groups in relation to his application for silk. 

Importantly, he succeeded in staying the bar's decision about his application until he had an opportunity to respond to the comments made about him. 

The silk selection process cannot be the same again. The path is now cleared for members to challenge and delay the careful contrivances of the inner sanctum. 

Seasoned stagers like George Thomas (criminal, equity) and Peter Skinner (criminal, industrial, administrative) have also stuck their heads up. Thomas has asked the bar not to destroy documents relating to the comments about his application and Skinner also wants access to what was said about him.

Thomas and Skinner have complained to the office of the attorney general Greg Smif, submitting that the whole system "needs an overhaul". 

Thomas described the problem as amounting to "significant restraints of trade on barristers by reason of the bar rules". 

Quite what the government can do about all this is hard to grasp - it having washed its hands of the entire silk business back in the days of Premier John Fahey. 

Justice David Yates found the bar doesn't have to cough-up the names or any identifying features of the members of what are known as the consultation group and the judicial consultation group. Only the comments themselves should be released to the applicant. 

Thomas: spoke to AG's people about restraint of tradeThat leaves Smallbone with an anonymised tally of responses that simply say YES, NO, or NOT YET. 

There doesn't seem to be any provision on the "consultation" form for "other comments". 

It's difficult to fathom what can be reasonably assessed by confronting a whole bunch of ticked boxed expressing the gamut of emotions from A to C.  

Smallbone would also be entitled to see, and check for accuracy, an anonymised statistical profile relating to the comments about him and the categories from where they came, e.g. solicitor, barrister, NSW Supreme Court. 

However, to identify a significant proportion of the 579 people consulted would not be an impossibility. The usual suspects would include the litigation partners at the top law shops, heads of chambers, heads of jurisdiction, etc. 

What is to stop applicants frantically ringing around and creating their own tallies of YES, NO and NOT YET? 

The Federal Court action involved an agitation of the national privacy principles which, as of June this year as a result of Smallbone's letters to the bar, were included in the silk protocol and were designed to make confidential all comments about applicants for senior counsel. 

Specifically, Smallbone sought injunctive relief under s.98 of the Privacy Act (Cth).  

However, there is a provision in the national privacy principles that potentially allows more room for jockying and was not explored in Yates' judgment:  

"NPP 6.3:  If the organisation is not required to provide the individual with access to the information because of one or more of paragraphs 6.1(a) to (k) (inclusive), the organisation must, if reasonable, consider whether the use of mutually agreed intermediaries would allow sufficient access to meet the needs of both parties."

As a footnote, Justice Yates rejected the documents tendered by chief barman Phil Self, "as not being relevant to any issue to be decided in this proceeding". 

*   *   *

The limited YES, NO, NOT YET formulation is only the threshold level of the selection game. 

Following a statistical analysis of the formal responses the selectors can either summarily dismiss an application that does not garner enough YESES. 

For those who graduate beyond summary dismissal the protocol allows selectors to ring mates, wise men and other big wigs for nudge-nudge, wink-wink assessments. 

These backgrounders play a powerful extra-mural function and are beyond scrutiny by applicants. 

The feedback from the unknown voices may be misleading, out-of-date, malicious or simply aimed at skewering a potential competitor. 

For instance, some applicants with criminal practices fear their names may be filtered by big swinging dicks at Forbes Chambers. 

Forbes has a large preponderance of top criminal silks in its ranks - nearly a third of the entire chambers of 38 people are silks. This attracts a lot of work and no doubt the chambers would like to keep it that way. 

Anyone polled at Forbes might be in the invidious position of having to comment on a competitor. 

Cronyism could also play a part, resulting in overly complimentary assessments of a candidate. 

The efforts made by the selection committee to check background information is not known. Unsuccessful candidates have no idea why they were binned, other than being told by the president of the bar 'n' grill in post-selection chats that they didn't attract enough YES votes. 

At the same time some applicants know that selectors have made absolutely no inquiries of their referees.  

Anger is mounting that the bar's executive spent members' money in defending this flawed regime in the Federal Court. 

For its part, the bar heavies are staying schtumm. 

We were told by deputy executive director Alastair McConnachie that, "No comment is to be made at this stage". 

Keith Mason, the independent, non-practising, member on the selection panel raced to defend the status quo with a few strange remarks: 

"Nobody has to apply. Everybody who does apply knows the ground rules... It's exhausting, it's based upon as much information as can be gathered ... the same processes are applied to everybody. It's very similar to the appointment of a judge." 

This comparison with judicial selection is unfortunate and is precisely the basis of the criticism directed at the voodoo side of the silk magic. 

Some of the letters to The Sydney Morning Herald have been instructive. 

Joe Weller of Lewisham wrote:

"You would think at least one judge would break cover and own his or her comments even though Justice Yates has not yet forced the issue; but don't hold your breath." 

Russell Mills of Redfern observed that every day in hospital wards around Australia nurses are openly assessed by their superiors before they can become registered nurses.  

"These assessments have to be full, frank and disclosed to the students so they can improve, discuss the assessment methods or at least understand why they aren't making the grade."  

*   *   *

Arab Spring galvanises Phillip StreetOccasional tinkering with the system has not fixed it. 

The top brass went into a huddle after Greg Curtin wrote his famous letter of complaint in 2009 and there was a bit more tinkering after Roger Gyles reported in 2010. 

See also Curtin's review for Justinian of the outcome of Gyles' reforms. 

The curious thing is that barristers for so long have merrily gone along with a process that is devoid of natural justice for members of the salon des refuses. 

Is an Arab Spring about to grip Phillip Street? 

See related information:  

• NSW senior counsel appointments for 2011  
• NSW senior counsel applicants for 2011
• NSW bar senior counsel protocol 
• Smallbone v NSW Bar Association
• Greg Curtin's letter 
• Gyles report on silk selection
• Federal Court fee guide for senior and junior counsel 

Update on Thursday, October 13, 2011 by Justinian

The Sydney Morning Herald is reporting this morning (Thursday, Oct 13) that the bar 'n' grill is not seeking to appeal the Smallbone decision, but strangely hasn't made up its mind whether other unsuccessful applicants for SC should be granted a peek at the comments. 

Smallbone has now seen the material he sought from the bar and thinks there is information that needs correcting. 

The bar has until next Friday to determine his application for silk. 

It's now in a bit of a bind. If his application is ultimately successful it shows the bar's processes are flawed. If it turns him down it gives the impression that mistakes don't matter.