QC Protocol

PROTOCOL FOR APPOINTMENT OF QUEEN’S COUNSEL

(as amended effective 1 August 2004)

A. QUALIFICATIONS FOR APPOINTMENT OF QUEEN’S COUNSEL

The principles governing the selection and appointment of persons as Queen’s Counsel by the Administrator of the Northern Territory of Australia are as follows:

  1. The appointment as Queen’s Counsel of certain practising advocates by the Administrator, in accordance with the following principles and under the following system, is intended to serve the public interest.
  2. The appointment of Queen’s Counsel provides a public identification of advocates whose standing and achievements justify an expectation, on the part of those who may need their services as well as on the part of the judiciary and the public, that they can provide outstanding service as advocates and advisers, to the good of the administration of justice.
  3. As an accolade awarded on the basis of the opinions of those best placed to judge. The appointment of Queen’s Counsel also provides a goal for the worthy ambition of junior counsel, and should encourage them to improve and maintain their professional qualities.
  4. Save for exceptional circumstances, appointment as Queen’s Counsel should be restricted to practising advocates, with acknowledgment of the importance of the work performed by way of giving advice as well as appearances in courts and other tribunals.
  5. The qualities required to a high degree before appointment as Queen’s Counsel are skill and learning, integrity and honesty, independence, diligence and experience.
    • (a) Queen’s Counsel must be learned in the law so as to provide sound guidance to their clients and to assist in the judicial interpretation and development of the law.
    • (b) Queen’s Counsel must be skilled in the presentation and testing of litigants’ cases so as to enhance the likelihood of just outcomes in adversary proceedings.
    • (c) Queen’s Counsel must be worthy of the confidence and implicit trust by the judiciary and their colleagues, at all times, as so to advance the open, fair and efficient administration of justice.
    • (d) Queen’s Counsel must be committed to the discharge of counsel’s duty to the court, that is, the administration of justice, especially in cases where that duty may conflict with clients’ interests.
    • (e) Queen’s Counsel who are in private practice must honour the letter and spirit of the cab-rank rules.
    • (f) Queen’s Counsel must have the capacity and willingness to devote themselves to the vigorous advancement of their clients’ interests.
    • (g) Queen’s Counsel must have the perspective and knowledge of legal practice acquired over a considerable period.
    • (h) In order for the foregoing qualities to have been properly developed and tested, it is expected that applicants for appointment as Queen’s Counsel should have practised for a considerable time.
  6. The system for the appointment of Queen’s Counsel must be administered so as to restrict appointment to those counsel whose sufficient achievement of the foregoing qualities displays and promises their ability to provide exceptional service as advocates and advisers in the administration of justice.
B. SYSTEM FOR APPOINTMENT
  1. The appointment of Queen’s Counsel is to be made by the Administrator upon the advice of Executive Council.
    • (a) Prior to 31 July in each year the President of the Northern Territory Bar Association and the President of the Law Society of the Northern Territory shall nominate to the Chief Justice in writing respectively barristers and solicitors experienced in litigation to be consulted by the Chief Justice in respect of any applications for recommendation for appointment as Queen’s Counsel.
    • (b) After applications for such recommendations have been received the Chief Justice shall consult with the other Judges of the Supreme Court, the Chief Stipendiary Magistrate, not less than one Queen’s Counsel, two junior barristers nominated by the President of the Northern Territory Bar Association and two solicitors experienced in the conduct of litigation nominated by the President of the Northern Territory Law Society, in relation to all applicants as to their qualifications in accordance with part “A” above.
    • (c) The Chief Justice shall consult with Judges of the Federal Court of Australia or Family Court of Australia as the case may be upon an application for a recommendation being made by a legal practitioner in accordance with this protocol whose work lies principally in either such Court.
    • (d) The Chief Justice may consult with any other person the Chief Justice thinks fit, including Magistrates and any judicial referee nominated by the applicant.
    • (e) The consultation shall be in such form as the Chief Justice thinks fit.
  3. On or after 1 August in each year, applications may be made in writing to the Chief Justice and/or the Attorney-General by a legal practitioner whose name is on the Roll of Legal Practitioners and who is the holder of a current unrestricted practising certificate who wishes to be considered for appointment as Queen’s Counsel.
  4. The Attorney-General shall on or before 7 September provide to the Chief Justice the names of those persons who have made application to the Attorney-General.
    • (a) No application will be considered for appointment which is received later than 31 August (or the first working day thereafter if it is not a working day), except in cases of accident or other special circumstances, in the discretion of the Chief Justice.
    • (b) The Chief Justice may summarily reject any application which does not contain the following words:
      “I have received from the President of the Bar Association of the Northern Territory a copy of the Protocol for the appointment of Queen’s Counsel and agree to be bound by it”.
  6. The Chief Justice may, in the Chief Justice’s discretion, consult with any of the persons from whom comments have already been received, for the purposes of further discussion, clarification or other assistance in the Chief Justice’s consideration of the applications.
  7. The Chief Justice may, but shall not be obliged to, refer any adverse comment made by any person with whom the Chief Justice has consulted concerning any applicant to the applicant for the applicant’s response, but shall not be obliged to disclose the source of the adverse comment.
    • (a) The Chief Justice shall, but only after taking into account the details of all applications and comments received, provide a list of all applicants to the Attorney-General and make the Chief Justice’s recommendation or recommendations to the Attorney-General in respect of only those persons who have applied to be appointed and in relation to whom the Chief Justice has consulted in accordance with this protocol.
    • (b) The Chief Justice shall not be obliged to recommend for appointment as Queen’s Counsel all applicants who are so qualified, but may also take into account the need for further appointments in the public interest and the maintenance of the office of Queen’s Counsel in high standing in the community and the legal profession.
  9. A list of the names of all applicants shall be provided, immediately after the closing date for nomination, by the Chief Justice to the Presidents of the Bar Association and of the Law Society who may make it available for inspection to any person in his or her absolute discretion.
C. QUEEN’S COUNSEL AND SENIOR COUNSEL APPOINTED ELSEWHERE
  1. Practising barristers resident out of the Territory, who have been appointed Queen’s Counsel or Senior Counsel in their place of residence, may apply to the Chief Justice to be recognised in the Northern Territory.
  2. Subject to the laws of the Territory if such recognition is granted such persons shall be accorded the same standing and privileges as if they were Queen’s Counsel in the Territory.
  3. The Chief Justice may grant or withhold such recognition in the Chief Justice’s unfettered discretion.
D. CONSEQUENCES

Queen’s Counsel, by seeking and achieving appointment, undertake to use the designation only while they remain practising advocates in private practice at the independent bar or retained under statute by the Crown, or during temporary appointments in a legal capacity to a court, tribunal or statutory body, or in retirement from legal practice.

E. TRANSITIONAL

Notwithstanding anything to the contrary herein contained, the Chief Justice may upon this Protocol receiving the approval of the Attorney-General by notice in writing to the Presidents of the Bar Association and the Law Society of the Northern Territory fix dates for the purposes of paragraphs 2(a), 3 and 5(a) under the heading “System for Appointment” which shall be the operative dates in respect of the first applications for appointment under this Protocol.

F. AMENDMENT

The terms of this Protocol may be rescinded or amended by agreement between the Attorney-General and Chief Justice after consultation with the Presidents of the Bar Association and the Law Society.

G. APPOINTMENTS OTHER THAN BY THIS PROTOCOL

The foregoing provisions of this Protocol have application to, but only to, the appointment of practising advocates as Queen’s Counsel. The Attorney-General shall, prior to recommending the appointment to the Executive Council of a person who is not a practising advocate, obtain from that person and supply to the Chief Justice an undertaking in writing that in the event of his or her being so appointed and entering into private legal practice, he or she will honour the letter and spirit of the cab-rank rules as set out in Clause A5(e) above.