THE controversial elevation of ACT barrister Stuart Pilkinton to the ranks of Senior Counsel invites questioning of the whole process. 
The public has a strong interest in the regulation of the professions, particularly law and medicine.
The public should have confidence in the process of admission to practice, continued admission to practice and any system of appointment to specialist or senior ranks.
I must immediately declare an interest, even though it is not conflicting. My wife was appointed senior counsel in 2008.
Pilkinton’s appointment attracted attention because of a Federal Court finding in 1992 that he had perverted the course of justice. He had done this while representing a woman on a drink-driving charge. The woman had given a false name to police so when her case came up the court was not aware of her previous convictions.
Pilkinton knew of the falsity because he had represented her in other matters but persisted in representing her under the false name in a plea of guilty.
Ultimately, the true facts unfolded. Pilkinton was convicted in the Magistrates Court, appealed successfully to the Supreme Court, but the Crown appealed that decision to the Federal Court and the Magistrates Court finding was restored. In the penalty phase, the charge was found to be proved, but no conviction was recorded.
The details can be found by going to austlii.com.au and looking under Federal Court cases for Re Frederick Gordon Hatty v Stuart Hearne Pilkinton.
Sure, the case may be 20 years old, but it goes to the fundamentals of the practice of law. Practitioners have to always be scrupulously honest with judicial officers and the courts and the judicial officers and the courts and fellow practitioners should always be able to absolutely rely on that honesty.
Sure, the case might have been a one-off lapse of judgment. But it was an extremely significant one that related directly to the practice of law.
The case invites questions.
Australia is verging on the creation of a national legal profession. Lawyers in other jurisdictions might well question what has happened in the ACT and whether the epithet “SC” might have been tainted by what has happened. They might also look at their selection processes.
In the ACT one might question why this candidate has been appointed SC when the Director of Public Prosecutions and the Solicitor-General have not – unlike in most other jurisdictions. And that a barrister with a more complex practice and with great published academic contributions — which are totally lacking in Pilkinton’s career — was passed over.
All the public gets is a media release from the president of the Bar Association, Philip Walker, saying that Pilkinton should be appointed. The public has no chance of understanding what the criteria are or how they are met, other than the media release which stated, “After consultation with more than 30 members of both local and interstate judiciary and senior barristers, the support for Mr Pilkinton’s appointment was very strong.”
If you pick that statement apart, we are not told whether the strong support was held by all 30 or only a few, or how strong the opposition was. I understand that there was some strong opposition among some barristers and that quite a few solicitors were appalled.
Walker and Pilkinton are both members of Blackburn Chambers, the chambers among four or five in Canberra, which has the most members.
Without a full public disclosure of how these appointments are made, it would be open to conclude there might have been a certain amount of old boys’ club about it.
One might also wonder why such appointments do not require some sort of formal judicial oversight or approval of the Attorney-General.
In medicine, of course, appointment to the professions senior ranks – fellowships of specialities – is only made after examinations.
While the legal profession is going about the drawn-out process of becoming a national profession it should do something about making the process of appointment to senior counsel more rational and intelligible.
It is important because nearly all judges are appointed from the ranks of senior counsel – let’s hope not one who has been found to have perverted the course of justice.
DOT DOT DOT
TASMANIA’S gay marriage legislation will provide the greatest constitutional feast since the Tasmanian Dams Case in the 1980s. But it is likely to end in failure.
This week Tasmania Premier Lara Giddins expressed her determination to push ahead. Equally, Prime Minister Julia Gillard asserted federal domain over marriage.
The Constitution provides that the Commonwealth Parliament has the power to make laws “with respect to” marriage.
But the High Court determines the meaning of words in the Constitution and thereby the limits of state or federal power.
The Commonwealth Parliament cannot do that itself. If the Commonwealth Parliament could define its own powers, its powers would be limitless and the states have no role.
In the Howard years it tried to define its own powers by amending the Marriage Act to define “marriage” as the union of a man and a woman.
As framed, that change is almost certainly constitutionally invalid. Nonetheless, Commonwealth dominance over the field of marriage arises in other ways, and Tasmania’s efforts appear doomed.
The Howard amendments could have said that the only marriages to be recognised in Australia would be those between a man and a woman. Then, irrespective of how the High Court interpreted the word “marriage”, the Commonwealth would have covered the field, as the constitutional lawyers say, leaving no room for state legislation.
In any event, so much law relating the consequences of marriage (divorce, custody of children, division of property, superannuation, social welfare, tax and so on) is federal law, so the extent of any state same-sex “marriage” would be extremely limited. Moreover, the states could not legislate for Commonwealth marriage celebrants to conduct celebrations of state same-sex marriages. Indeed, it could prohibit them from doing so. So there could be no real equal status via a state law.
The more tricky situation arises if the legislation now before the Commonwealth Parliament to recognise same-sex marriage is passed (either now or in the distant post-Abbott future when both major parties allow a conscience vote).
Such a law would inevitable be challenged. It would then be for the High Court to determine the meaning of “marriage”. If it held that the principles of constitutional interpretation allowed for an evolving meaning, it might say “marriage” now includes same-sex unions. Then the new Commonwealth law would apply.
If not, it would require a referendum to change the meaning of the word “marriage” in the Constitution – with all its attendant difficulty.
If Australian politicians and public had had the courage to put a Bill of Rights in the Constitution, the cause of sexual equality would have been smoother.
CRISPIN HULL
This article first appeared in The Canberra Times on 11 August 2012