This week, one man’s year long campaign to end the secrecy which surrounds the appointment of silks in Victoria comes to a head. John Riordan, who has practised at the Victorian Bar for over thirty years, will be urging his colleagues at a general meeting of the Victorian Bar tomorrow to let unsuccessful candidates for silk be allowed to get feedback on why they failed and to let them appeal against getting knocked back.

It’s extraordinary that in 2007 there is still an occupation in our economy which operates like a secret society but the Victorian Bar is just that when it comes to who gets the right to put the letters SC after their name and charge higher fees to consumers,

Riordan began his campaign for reform last year after his application to the Chief Justice of Victoria, Marilyn Warren, who decides who gets silk, was unsuccessful. Now Riordan has published an eight page paper on why the system needs reform, and its scathing about how Victoria has fallen so far behind other jurisdictions like the UK when it comes to fairness and transparency.

The system of appointment of silks “has changed little since its introduction in the 17th century,” writes Riordan.

“The Chief Justice is asked to carry out the selection. Once, most barristers became Queen’s Counsel. As a result, there were no issues. With burgeoning numbers, this is no longer so. Selection has become far more difficult. The system, as currently structured, is no longer capable of ascertaining all excellent barristers. There is a mindset against change,” he says.

Victoria, he says, “remains rooted in the past. It has refused to change or investigate its system. It has a deep aversion to reform. It persists with an ancient system, rejecting contemporary precepts such as transparency. It remains shrouded in secrecy. Procedural fairness is ignored. It is dramatically out of kilter with modern standards. Not surprisingly, this results in injustice. All exceptional barristers are not identified. Secrecy ensures that barristers do not know why,” Riordan writes.

Perhaps, and this should concern all consumers of legal services who have to foot the bill for silks, there “are no protocols, no criteria. Excellence is not defined. Does excellence in mediation count? Does service to the profession count? Is age relevant? We are not told. It is secret,” Riordan observes.

In other words, the claim cannot be made in Victoria that the appointment of silks is done purely on merit.

There is of course a strong argument for simply abolishing silks. But if that’s not going to happen at least the Victorian Bar could drag themselves into the 21st century by opening the doors on their secret practices.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey