Sydney barrister Gregory Curtin, from Sir James Martin Chambers, has made a detailed case against the silk selection system, saying it is unfair and opens the bar to accusations of hypocrisy.
In a letter widely distributed throughout the bar Curtin, who unsuccessfully applied for silk in 2006, 2007 and 2008, said there is a perception that the process operates “capriciously”.
He claims that the judges, barristers and solicitors to whom he has spoken have a “poor opinion” of the bar’s silk protocol.
Curtin accuses the bar council of being “asleep at the wheel” on silk selection. The whole process is handed over each year to a committee, which operates without oversight.
The decision making is secretive, not independent and open to “invalid voting”.
False accusations against applicants are accepted without being checked. The selection committee is not bound by substantive rules of fairness or natural justice.
Further, committee members are not required to disqualify themselves on grounds of apprehended bias.
His most telling point was that in 2007 and 2008 barristers from the same chambers as members of the selection committee were five times more likely to be appointed silk than other applicants.
“It seems unlikely to me that successful silk applicants just happen to be thick on the ground in committee members’ chambers one year, and then thick on the ground in the following year’s committee members chambers.”
There is a requirement that those canvassed for an opinion about the candidates are required to have personal experience of the barrister for or against whom they are “voting” within the last five years.
Curtin said that in his own experience of the process in 2007, the facts suggest that all his “no” votes from silks were from people whose “direct personal experience of me was right on five years previously or greater”.
All “yes” votes from silks were within the five-year period of direct personal experience of his work.
“No checking of votes of any description is presently carried out, even on a randomised sample basis. Under the present protocol, as the senior vice-president tells me, [silk selection] committees can only ‘assume’ that voters comply with the voting requirements.”
As to the “feedback” process (“discussion is too bold a word”), usually in the form of a chat with the president of the bar, Curtin found that in 2007 and 2008 the interviews “concerned matters not found in the criteria set out in the protocol.
“In those two years, not one of the criteria found in the protocol was mentioned. This at a minimum, gives rise to a perception that those applications were rejected, at least partly, for reasons not found in the protocol.”
In 2007, the one item of feedback he received that did fall within the protocol was false.
“That falsity would have been easily uncovered had that year’s committee been required to make a sufficient number of inquiries, in sufficient depth, from people who had actually had some relevant experience of me. Currently there is no such requirement.”
Pressure has been building for years as the number of barristers angry and resentful at the way the silk protocol functions steadily grows.
So much so that the bar council will “review” the protocol. Whether this amounts to tinkering at the edges, as in previous “reviews”, or a determined effort to address fundamental shortcomings, remains to be seen.
Curtin says in his letter he has sent the bar council “provable facts” as to the unfairness of the present way silks and selected. He did not include these provable facts in his letter, but added that if an officer of the bar says no such evidence exists, “then I will revisit my decision not to outline that evidence to you”.
He puts forward seven ideas for reform:
* Silk selection committees to be composed of retired judges. Alternatively it should be a requirement that no committee member be entitled to vote for or against an applicant from their own chambers. Neither the president nor the senior vice-president should be members of the silk selection committee. Instead, they would be responsible for oversight and making sure that the rules of the protocol were followed.
* The five-year rule to be reduced to three. The senior vice-president already agrees with this reform.
* Votes to be weighted in favour of judges votes, as they are better placed to pass judgment on the criteria in the protocol.
* A modest fee of $100 to be introduced, payable by each applicant. This would help defray the costs of checking and compliance.
* The protocol to be strengthened so that the criteria for selection should be the only matters considered.
* Each applicant to supply a “representation search”, identifying the judges and barristers and cases in which they were involved in the proceeding three years.
* The selection committee to make the majority of their inquiries of the judges and barristers identified in the representation searches. “Hearsay comments” would be removed if the committee checked them with the relevant judge or the most senior barrister in the case.
Bar prez Anna Katzmann responded by saying, “a number of assumptions Mr Curtin makes are inaccurate”.
She claims the silk selection committee does not leak information about applications.
She added that it was not accurate to say that senior counsel are “elected”. Using words such as “votes” and “voting” is inappropriate.
However, “all suggestions for improvement are welcome”.
None of Curtin’s substantive complaints were addressed – particularly the claim that the system is skewed in favour of candidates from the same chambers as the selectors.
Senior people at the bar have urged that the committee look at whether candidates regularly appear in the higher courts or against silk. If so, they should be selected.
It’s incredible to discover that this is not already a requirement for silk.
Also, it was suggested in informal submissions to members of the committee that the numbers of new silk this year should be substantially increased with many more women selected.
Earlier this month the “capriciousness” of the system was exposed when it was revealed that at the last minute three new silk were added to the list just before it was announced.
Maybe it’s time to get rid of the ticks and crosses “beauty parade” and implement a regime of rigorous investigation and analysis of the candidates’ achievements.