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A rare honour: Queen's Counsel in New Zealand

05 April 2019 - By Geoff Adlam

Over 35,000 people have been admitted as lawyers in New Zealand since the beginning of the 20th century. In that time just 317 members of the profession have been appointed Queen’s Counsel. It’s a rare honour.

The profession has just completed a round of ceremonies in which 10 new QCs were called to the inner bar after the announcement of their appointments in late November.

Let’s not bother about the history of the title in the United Kingdom. In this country, the first appointments were made on 7 June 1907. Late in 1906 the government announced that the “Home Government” had empowered the Governor of New Zealand to confer the title of King’s Counsel. There was the usual vigorous debate in newspapers. While commenting that the new KCs would “no doubt get the principal share of the Government business in the Courts”, the Press then noted that “[a] gentleman well-known in legal circles remarked that the positions of barristers and solicitors in this colony not being separated, the spectacle might be witnessed of an exceedingly eminent KC appearing in the Police Court to defend a battered derelict charged with drunkenness and riotous behaviour, or something else equally sordid and plebian.” (Press, 12 December 1906). We’ll get back to this…

Six months later the appointments of 10 King’s Counsel were announced. The appointees had been nominated by Chief Justice Sir Robert Stout from a list of applicants. Stout CJ decided that the appointments needed to recognise the local Bars in the four main centres – so there were four appointees from Wellington and two each from Auckland, Christchurch and Dunedin. He was at pains to point out that Wellington had four because it was the centre of several judicial districts and also the city of the Court of Appeal which sat there three times a year.

Is location still important?

Definitely. However, it’s also important to look at the distribution of the pool of potential QCs. Currently, Auckland has 51% of New Zealand’s barristers sole, followed by Wellington (14%), Christchurch (9%), Hamilton (4%), Dunedin (3%) and Tauranga (3%). Auckland has certainly outstripped the other centres since 1908, but it has the most barristers by far.

Five Australians have been appointed QC in New Zealand. Three – all from Melbourne – were appointed in 1994 under a reciprocal admission agreement.

Location on appointment

LocationNumber
Auckland138
Wellington105
Christchurch31
Dunedin13
Hamilton9
Palmerston North5
Melbourne4
New Plymouth3
Napier, Tauranga, Whanganui2
Invercargill, Rotorua, Sydney1

Queen’s and King’s Counsel

This could possibly be the only honour where the title changes according to the gender of the monarch. “Queen’s Counsel” has been conferred on 274 people, with 43 (all male) having been appointed King’s Counsel. It appears that when the gender of the monarch changes the protocol is for an immediate change for every official reference – so new business cards all round some time in the future…

Once were Senior Counsel…

In New Zealand, of course, we decided to rename the role “Senior Counsel” in 2006, with the last (at the time) Queen’s Counsel appointments being made in 2007. The Lawyers and Conveyancers Act (Lawyers: Senior Counsel and Queen’s Counsel) Regulations 2008 then came into effect and on 1 October 2008, seven Senior Counsel were appointed (who have since taken the title Queen’s Counsel). The new honour was available to non-barristers. In June 2009 reinstatement of the title Queen’s Counsel was announced, but it was another three years before the Lawyers and Conveyancers Act (Lawyers: Queen’s Counsel) Regulations 2012 came into force on 1 February 2013.

Appointment rounds

After the excitement of 10 appointments in 1907, it was two months short of a century before there were more appointees at any one time. On 14 May 2007, 12 barristers were appointed Queen’s Counsel. The most appointed at any time were 26 in the great “catch-up” round of 2013. Although then Attorney-General Christopher Finlayson and Solicitor-General Michael Heron had been appointed QC on 10 December 2012, it had been five years since an applicant-driven appointment round had occurred. More QCs have been appointed than the 10 in 2018 on just five occasions. In the six years since appointments resumed in December 2012, 80 QCs (25% of the total) have been appointed.

Most appointments at one time

DateAppointees
16 May 201326
4 June 201414
2 June 201713
14 May 200712
7 June 201612
7 June 190710
28 Nov 201810

Gender

The first women appointed Queen’s Counsel were Dame Sian Elias and Dame Lowell Goddard, on 4 March 1988. It was a further seven years – and 34 men – until another woman attained the rank, with the appointment of Judith Ablett-Kerr on 20 April 1995. Since 1988 there have been 204 Queen’s Counsel appointed, of whom 39 (19.1%) have been women. Overall, 12.3% of all Queen’s/King’s Counsel appointees since 1907 have been women.

The 2018 round was highest for the proportion of women appointees, with five (50% of total). Four women were appointed in 2016, 2014 and 2013.

The Crown Law Office has kindly provided details of the gender of applicants since 2002. The information relates to appointment rounds and therefore does not include the appointments of Chris Finlayson QC and Michael Heron QC in December 2012.

Applications since 2002

YearFemale applicantsFemale appointeesMale applicantsMale appointeesTotal applicantsTotal appointees
2002-200867105623262942
20131641002211626
201421476109714
2015191662853
20161745887512
201717356107313
20182156959010
Total17831918841165120

This shows that women have had a higher success rate over the last 13 appointment rounds, with 17.4% of their applications successful, compared with a 9.2% success rate for men and 10.3% for all QCs. Women have made 15.3% of the applications over the time and achieved 25.8% of appointments.

Time to attain the rank

At the moment, 131 QCs hold practising certificates (of whom 28 – 21.4% – are women). With about 0.9% of New Zealand’s practising lawyers (and 9.2% of barristers sole) holding the rank of Queen’s Counsel, it is clear that the honour is hard-earned. Since the round of appointments in 1980, the average time in practice before appointment has been 26.7 years. Women appointed Queen’s Counsel have been in practice for an average of 24.6 years and men for an average of 27.1 years.

Of course, “Queen’s Counsel” recognises excellence at the Bar, and the guidelines for appointment note that only barristers sole may be appointed QC. At 1 February 2019, of New Zealand’s 1,417 barristers sole, 564 (40%) were women. If the average time in legal practice before QC appointment is considered, there were 703 barristers at 1 February 2019 who had been in practice for more than the average time of appointment (and 131 of these are already Queen’s Counsel). Just 198 of the barristers in practice for more than 24.6 years were women.

The mark for the most years in practice before appointment appears to have been set in 2017, with the special appointment of Victoria University law professor Tony Angelo. Professor Angelo QC was admitted in 1965, 52 years before his appointment.

Data on time in practice is held for three-quarters of all QCs appointed. From this group, the shortest time in practice before appointment was 12 years and 4 months, for Dunedin’s Judith Ablett-Kerr QC (appointed on 20 April 1995).

New Zealand’s longest-serving Queen’s Counsel still in legal practice is Robert Fisher QC, who was appointed on 1 August 1985. He is followed by James Farmer QC (appointed on 8 May 1986), Alan Galbraith QC (appointed 6 April 1987), Colin Withnall QC (appointed 4 March 1988) and Nigel Hampton QC (appointed 17 May 1989).

Sir Ian Barker QC was appointed in 1973. After an illustrious career at the Bar and then on the bench, he now practises as an arbitrator and mediator from Auckland’s Bankside Chambers.

Attorneys-General and Solicitors-General

The appointment process starts with the Solicitor-General consulting the New Zealand Law Society and New Zealand Bar Association on the applicants and then giving their views to the Attorney and Chief Justice who then confer. The Attorney-General is responsible for recommending the appointment of QCs to the Governor-General, who makes appointments under the Royal prerogative.

Solicitor-General Una Jagose was one of those appointed in the 2016 round. Since the first KC appointments in 1907 there have been 14 Solicitors-General and all have been appointed KC or QC. The only Solicitor-General missing since New Zealand started appointing Queen’s Counsel is Frederick Fitchett, who was Solicitor-General in 1907, but did not receive the rank.

Seven Attorneys-General have become Queen’s Counsel – although Sir Thomas Webb was appointed six days before leaving office in 1954 and Sir Geoffrey Palmer (originally SC) was appointed to the rank in 2008, well after he had left Parliament. Since 1907, 26 different people have acted as Attorney-General. Most have been members of the legal profession but it’s certainly not an automatic transition to QC.

Judicial QCs

Of the 317 King’s or Queen’s Counsel appointed in New Zealand, 106 have gone on to become members of the judiciary. Seven of our 10 Chief Justices since 1907 have been King’s or Queen’s Counsel and six QCs have become President of the Court of Appeal.

At the moment, there are 23 QCs serving on the bench.

Family connections

Three generations of the Cooke family have attained the rank: Justice Philip Cooke KC (appointed 28 January 1936), Sir Robin (Lord) Cooke QC (appointed 25 May 1964) and Justice Francis Cooke QC (appointed 27 July 2004). All three Cookes became QCs relatively early in their career, taking an average of just over 15 years from admission to appointment.

There are several instances of two generations, including: Sir Richard Wild CJ (appointed 11 September 1957) and his son John (appointed 26 May 1993); High Court Judge Lance Tompkins (appointed QC 13 May 1958) and his son Sir David Tompkins (appointed in 1974); Sir Ronald Davison CJ (appointed 16 June 1963) and his son Paul (appointed QC 27 May 1996); High Court Judge Sir John White (appointed QC on 14 March 1966) and his son, former Court of Appeal Judge Sir Douglas (now Law Commission President; appointed 4 March 1988); and Sir Geoffrey Palmer (appointed 1 October 2008) and his son Matthew (now a High Court Judge; appointed 4 June 2014).

Time as QC

The QC rank is held for life. Former Chief Justice Sir Ronald Davison was appointed QC on 16 June 1963 and died on 2 July 2015, 52 years after his appointment.

The shortest tenure appears to be that of Christchurch barrister Thomas Joynt KC who was in the first group of KCs appointed on 7 June 1907. He died just under three months later, on 5 September 1907.

The shortest time between being appointed to the rank and becoming a judge is the split second between the appointment of Sir Henry Ostler KC as a King’s Counsel and then a Judge of the Supreme (now High) Court on 2 February 1925. Sir Henry had accepted an offer of appointment to the Supreme Court bench in 1924 on condition that he would not be expected to start until 1925 and that he would first be appointed King’s Counsel.

Barristers’ Chambers with most Queen’s Counsel

This is believed to be Shortland Chambers in Auckland, with 19 Queen’s Counsel among its 33 full members (and another four QCs as associate members). Bankside Chambers has 16 QCs among its 33 full members (plus another seven QCs as associate members).

Appearances by QCs

The sky didn’t fall as prophesied by the legal gentleman in the Press in 1906. With an average of 90 applications per round, it’s clear the honour is seen as worth having. QCs are involved in a relatively high proportion of proceedings in the higher courts. Law Society Wellington Librarian Robin Anderson has analysed proceedings in New Zealand’s senior courts from 2015 up to 12 March 2019. He has found that, over that period, 30.4% of proceedings in the Supreme Court had at least one QC representing a party, with at least one QC in 18.7% of Court of Appeal proceedings and at least one in 12.1% of High Court proceedings.

And back to where it all started

Apart from the Queen’s homeland, the rank of Queen’s Counsel has had a stop/start history in several other Commonwealth countries, including our own. England and Wales has an annual “competition” for those who want to become Queen’s Counsel. It has its own website and around 100 or so new Queen’s Counsel emerge each year (108 in 2018, 119 in 2017, and 113 in 2016/17). Of the new appointments in 2018, 30 were women (27.8%). In 2017, 32 women were appointed (26.9%). The 2018 round attracted 240 applications, down 32 on the previous year. In 2018, 54.5% of female and 41.9% of male applicants were successful. Information on LGBT+ applicants is also provided, with nine people in that category applying in 2018 and four successful. There were 30 “ethnic minority” applicants, of whom 13 were successful.

The Bar Standards Board which regulates the 16,598 barristers says QCs generally have a minimum of 15 years’ practice before attaining the honour. It says there were 1,695 self-employed QCs in 2018, of whom 83% were male, 16% female and 1% preferred not to say.

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Last updated on the 24th April 2019