Hearsay ... the Journal of the Bar Association of Queensland
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From the President Print E-mail

On 19 May 2008 the Bar Council resolved:


“that an Extraordinary General Meeting of the Association be called to consider and if thought fit, to pass the following motion:

‘that clause 10.2 of the Constitution of the Bar Association of Queensland be modified so as to read:

‘10.2    The Council shall consist of 17 persons namely the President, the Vice President, fourteen (14) Practising Members and one (1) Employed Member.  The President, Vice-President and fourteen (14) Practising Members shall be elected by and from Practising Members.  The fourteen (14) Practising Members shall include not fewer then:

(a)    two (2) women members;

(b)   one (1) member of not more than three years’ standing at the Bar at the date of the declaration of the election;

(c)    two (2) members, each of whom is of not less than three years standing but not more than ten years’ standing at the Bar at the date of the declaration of the election;

(d)   two (2) members practising north of the northern boundary of the Sunshine Coast Regional Council local government area;

(e)    one (1) member practising from one of the Gold Coast City Council local government area, the Sunshine Coast Regional Council local government area or the Toowoomba Regional Council local government area.’

Each of (a), (b), (c), (d) and (e) is a class for the purposes of rule 11.17.  A Practising Member who falls within more than one class shall be taken into account for the purpose of satisfying the requirements relating to each such class.”

The resolution, if supported by 75% or more of the votes cast at the EGM would effect two changes:

(a)     firstly, it would remove the requirement that silks fill two of the 14 positions left after taking out the positions occupied by the President, the Vice-President and the Employed Member; and

(b)    secondly, a new reserve category would be created which would result in at least one member of Council being a barrister practising from a non-metropolitan location in South East Queensland.

The proposal to make these changes is based on the philosophy that voting for Council should be as unrestricted as possible and that this goal would be best achieved by adopting the principle that positions on the Council should only be reserved for members of a sub-group if it had all of the following features:

(a)    its members are so few that they cannot secure representation on the Council;

(b)    its members are of special significance to the Bar; and

(c)   the operation of the Council would be enhanced by having a member of the sub-group participate in the Council’s work.

The first change is to remove the requirement that 2 places be reserved for silks.  It is arguable that silks as a sub-group do qualify but they are supposed to be the leaders of the Bar and experience shows that ordinarily they command sufficient votes to win election to the Council.  They have made up the majority of Councils (ie with numbers greater than the two reserved seats) which suggests that as a group they enjoy an advantage at election time.  This advantage makes the reservation of positions unjustifiable.  The reservation is also inconsistent with them being leaders.  A disadvantage of the change is that it raises the possibility that there may be a Council which includes no senior counsel.  This is most unlikely and would only occur in circumstances where the silks were not true leaders.

As things stand the members practising from non-metropolitan locations in South East Queensland who would be affected by the second modification would be those practising on the Gold Coast, on the Sunshine Coast and at Toowoomba.  The numbers of barristers practising from the Gold Coast and the Sunshine Coast are growing rapidly as is the amount of litigation being conducted in the courts which sit in these two areas.  The information available to the Council was that, despite the fact that both centres are within easy driving distance of Brisbane, members tended to spend most of their time in their own districts with the consequence that there was a risk that they lost connection in a significant way with the main body of us who practise in Brisbane.  These areas will obviously increase in significance as their populations grow and these factors and the reality that Council has never included a member from either of these areas suggest that this group meets all of the three criteria referred to above.  Toowoomba was added to the area because its numbers fluctuate and there is the potential there for growth.

Consideration was also given to increasing the number of seats on the Council which would be unaffected by any reserve position by removing those positions reserved for members between three and ten years seniority.  Their numbers represent approximately 30% of the membership of the Association.

Despite this, recent voting records of votes cast at BAQ annual general meetings suggest that, without the reserved seats no or next to no members from this group would gain positions on Council.  The following table is based on the Association’s records and excludes reference to employed members and members of less than four years seniority.  Line (a) represents the number of silks on the respective Councils.  Line( b) represents members who are ten years and over in seniority and who would have been elected regardless of qualifying for a reserved position.  Line (c) are those with ten years seniority and greater who were elected only because they qualified for a reserved position.  Line (d) are those between four and ten years who would have been elected regardless of qualifying for a reserved position.  Line (e) are those between four and ten years seniority who were elected only because they qualified for a reserved position.  “(r)” denotes that the relevant reserved position was for a regional member.

  2003  2004 2005 2006
(a) 9 8 8 9 10
(b) 3 3 4 3 4rr
(c) 0 2rr 2rr 2rr 0
(d) 1 0 1 0 2
(e) 1 2 1 2 0

This experience shows that, but for positions being reserved for the three to ten year group, it would have no representation on Council some 40% of the time and a further 40% of the time would only have one member.  In these circumstances, in a practical sense the group can be said to satisfy the first qualification.  While this is surprising given the group comprises 30% of the membership of the Association, this probably can be accounted for by the fact that our members in this phase of their careers are working hard at establishing themselves in their practices and are relatively unknown, not only to the wider membership, but also to other members in the same category so that they are at a disadvantage when election time comes.

Otherwise this group satisfies the other criteria.

As soon as a date has been set for the EGM, members will be notified.

Michael Stewart SC

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