I write to the Council again regarding the “Silk” system. I have previously written seeking an enquiry into both the system and the process of silk selection involved, on the basis both are seriously flawed. The Council has refused such an enquiry. It is not apparent to me that this decision was made with any real consideration, but rather to maintain the status quo.

The promulgation of silks this year provides my comments with a new poignancy. I have contended that the system itself is seriously flawed, amounting to an anachronistic colonial legacy. It is anti-competitive. It results in an unnecessary increase in legal costs to the community. The system confers economic benefit on a chosen few, advancing their careers while inhibiting the careers of those not favoured. It is wholly out of step with contemporary standards, reflecting only stultifying tradition. Tradition does have the great virtue of certainty. Those who adhere to it do not challenge it. They adopt it with a singular rigidity.

With the selections last week, it is the selection process which must be under particular scrutiny. If the system is to be maintained, the process is of critical significance. Appointment provides a significant economic benefit to those selected. Their selection should only be made in accordance with the most rigorous procedures. It is elementary that the process should be transparent and fair.

The present process does not meet these standards. It falls far short. Once application is made in August, there is no further contact between the Chief Justice, or on her behalf, and the applicant. Applicants only learn of the result in late November by the publication of the names of the successful candidates on our computer screens by medium of an email from our Clerk. No reasons are provided for rejection. Any adverse comment which has brought about rejection is not advised. It is a wholly secret process. The applicant is not interviewed. Applicants are left to speculate as to why their applications failed. They do not know if they have offended some unidentified Judge or other person or committed some other transgression. They are left wondering whether the Chief Justice’s enquiries have revealed some unknown dark secret.

This system is imposed upon barristers. At the very least, they should be treated with respect. They deserve better. Natural justice requires that they get better. If the process falls short, it should be remedied.

I ask the Council to review its position as the selections inevitably lead to many being disaffected. The secrecy of the process compounds that unhappiness. It seems that the Bar Council is the only body which can review the practice. It is not as if a precedent does not exist for a proper process. An exhaustive enquiry in the United Kingdom has resulted in a rigorous approach. For a start, the independent selection panel consists of 11 members from the judiciary, the legal profession and the community. By way of contrast, the Chief Justice here is asked to undertake an impossible task. The UK system provides for interviews of candidates and referees. Clients provide references. Any adverse comment is conveyed to the applicant for his or her response. Reasons are given for rejection in a further interview. Unsuccessful candidates are even counselled regarding deficiencies in their material. An appeal is provided. It is a decent process.

Why should Victorian barristers settle for so much less? Why should the Bar Council ignore the considerable efforts made in England to provide fairness whilst blindly adopting ancient English practice?

The time when historical trappings should be accepted without question has passed. The challenge is for the Bar Council to review the appropriateness of this entrenched practice which is out of kilter with contemporary values. If the Bar remains intransigent, the only recourse left is a complaint to the ACCC in respect of the system and a Court challenge to the process. I am reluctant to take steps which might, at least in the short term, lead to criticism of the Bar.

I am referring this letter to all members of the Bar and the judiciary as I believe it is time that the whole profession participated in discussion of this issue.

I would be grateful to receive your response urgently as time is of the essence.

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Peter Fray
Peter Fray
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