24 Nov 2016
ATTORNEY-GENERAL John Rau says he was “entitled” to apply be a Senior Counsel – but those who must be consulted about the honour learned of his application just three weeks ago. The Advertiser can reveal peak bodies including the Law Society and Bar Association were not told of Mr Rau’s bid for the title until the first week of November. Under the Supreme Court’s rules, those bodies are given a list of applicants “as soon as practicable” after the June 30 application deadline so consultation can begin. Yesterday Chief Justice Chris Kourakis said he absented himself from considering Mr Rau’s application, conceding consultation began after the bench deemed it “worthy”.
Mr Rau, meanwhile, said he could not remember when he applied but stressed it did not signal the end of his political career. He said he intended to stay on as Attorney-General, would contest the 2018 election and would not “give back” the title. “Some people only see things through a political prism. That’s not the way I look at things,” he said. “I’ve been a member of the legal profession for 35 years … had I not been in this job, I quite possibly would have made an application a long time ago. “As it strikes me, I’m a person who is entitled as a legal practitioner to say to the Supreme Court ‘do you consider me to be a suitable person to be an SC?’ “I think I’m entitled to rest on the judgment of the court, as is any other citizen.”
On Tuesday, Mr Rau was one of six lawyers named SC by the Supreme Court. Under the court’s rules, the Attorney-General has a right of consultation on the applicants, as do peak legal bodies. Chief Justice Kourakis said the bench opted to consider Mr Rau’s bid “despite its lateness”, and that he consulted on applications “except his own”. He said that, after “some discussion”, the bench decided “no different criteria should be applied to people in public office” than to other lawyers. He noted MPs had previously been made SC and Queen’s Counsel, both before and after entering politics. “The Attorney-General’s application was received after the time provided by the rules but not so as to affect the consultation process,” he said.
His name did not appear on the consultation list. “The reason for that difference was that it was thought, given his position, the sensitivity of a consultation, which is wide, and then rejection would be difficult,” he said. He conceded Mr Rau’s application had made it “awkward” for the bench but was confident that, in his absence, it had “conscientiously” handled the matter. “If it were thought I was supporting the Attorney, some might have thought I was compromising my position in terms of what I have to do to maintain the independence of the judiciary against the executive,” he said. “If it were thought for any reason that I was opposing the Attorney’s application, that would make the relationship I have got to have with him very difficult – as you would expect.” Mr Rau said he had “no influence whatsoever” on the courts, which would have told him if his application “was oppressive or burdensome”. He denied he had applied late in order to stop his name appearing on the list provided to consultants.
ARE YOU GOING TO APPLY?
The Advertiser asked every South Australian MP with a legal degree if they would apply for a position of Senior Counsel while in Parliament.
NOTE: Senior Counsel is a highly prestigious title awarded to reward excellence in the courtroom. In SA, lawyers mostly commit to solely being a barrister on being made a Senior Counsel.
Deputy Opposition Leader Vickie Chapman: “No. I’ve been in Parliament for 14 years and I haven’t applied.”
Premier Jay Weatherill: “I am not as eminent a jurist as the Attorney-General.”
Former Liberal leader Isobel Redmond: “I consider it entirely inappropriate for a member of parliament to make such an application. In my view the granting of it to someone who is not practising devalues the years of hard work put in by those who have truly earned the title.”
Greens leader Mark Parnell: “No. My primary responsibility is to the people of South Australia who elected me to represent them in Parliament”.
Liberal MP Andrew McLachlan: “It is my understanding that the convention in the legal profession is that you apply for silk after being encouraged to do so by senior members of the profession. Making an application for silk is not something I am presently contemplating.”
Employment Minister Kyam Maher: “It has been quite some time since I practised law.”
Liberal MP Vincent Tarzia: “I would never apply for the position of SC while in Parliament. For the Attorney to do so shows how out of touch he is.”
Liberal health spokesman Stephen Wade (never practised): “I wouldn’t have the background to apply. I personally wouldn’t object to an MP applying for that title but I would assume they’re leaving because it’s a practising title. I think the Attorney-General is a different kettle of fish because by the nature of the office they’re involved in the process.”
Speaker Michael Atkinson (never practised): “That’s an absurd question as having not been admitted as a practitioner I’m not eligible.”
Liberal MP David Speirs (never practised): “I think it’s quite unusual and in my view it’s clearly someone preparing for their political exit.”