Melbourne barrister John Riordan is running a very effective public campaign to change the system for the appointment of Senior Counsel (silks). Riordon demands to know why he has not been appointed and, it seems to me, is setting up the prospect of challenging his refusal in court (by judicial review).

Riordan has called a Victorian Bar meeting to propose that “comprehensive reasons (feedback) for the rejection” be provided upon the candidate’s request. My dictionary defines feedback as including “a rumbling, whining or whistling sound”. The whining part seems particularly appropriate.

Riordan, who is about 60 (which is well past the usual age of appointment of early 40s) runs the risk of discovering that he is regarded as too old and not good enough. Whatever it is, if he gets reasons he should publish them.

High Court Chief Justice Gleeson has said that silk is based on “learning, skill and ability”. It has to be said that, at the present, Riordan is not seen as qualifying.

I took silk in 1986 so I am now a senior member of the profession. My experience is that those who are worthy get silk, sooner or later. Silks are not appointed on demand and barristers may have to wait – but if they are good enough they will get it.

On the other hand, barristers are nothing if not huge egotists – each one thinks he or she is the best lawyer in the country. All barristers hold a secret desire to be silk until it is crushed by repeated refusals.

Riordan proposes that there be a committee which reviews refusals upon request. It is worth noting that a similar system in the UK is funded by applications for silk costing $7,500.

In the end, it is my view that the system works well. Not every system of promotion has to give reasons and be reviewed by committees and the courts as Riordan proposes. The Australian cricket team spring sot mind – it would be absurd if a player was dropped he could have judicial review.

I have no objection to failed candidates being told the reasons (as occurs in NSW). I strongly object to the worthiness of candidates being endlessly litigated in the courts. In Victoria, Chief Justice Marilyn Warren decides and I think that is appropriate.

After all, if we cannot trust the Chief Justice in a matter like this, who can we trust?

Peter Fray

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Peter Fray
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