Knights, Naysayers And Liberty’s Legacy

The first thing I had to look at when I came in the studio tonight was whether we were on black and white TV or were in colour. I mean are we back in the 1960s or are we a twenty-first-century nation that’s confident? … What is it about this country that we continually want to hang onto the baubles and trinkets of an empire in decline instead of looking at moving forward?   — Greg Barns, Lateline, ABC-TV, March 24

The decision by Tony Abbott to reintroduce imperial honours into the Order of Australia attracted a short but intense debate. In the House of Representatives, Speaker Bronwyn Bishop had to call for order after the Labor Party greeted the Prime Minister’s announcement with what she called “an outbreak of infectious laughter”. The comments and questions from the opposition benches reflected the discussion already begun in the mainstream media. The quotation above from Tasmanian barrister and republican advocate Greg Barns was typical: the return of knights and dames was hopelessly out of date, indeed, pathetically childlike in its dependence on Britain. Barns set an example dutifully followed by leftist politicians and news commentators: “It’s people who are sort of scared of moving into the future, they’re scared of an Australia which stands on its own two feet, that want to revert back to this silly order, just like QCs. I mean when will this country grow up?”

However, a strong case can be made that it is Barns and the Labor Party who are actually the ones out of date and childishly dependent. They remain stuck in the imagined leftist certainties of the Keating era of the early 1990s. Despite the enormous changes in the world in the subsequent two decades, they are still conforming to the same ideas and mouthing the same slogans they learnt so long ago.

In fact, Barns undermined his own case when he mentioned his profession’s push to restore the title of Queen’s Counsel for senior barristers. Rather than a reversion to the baubles of an empire now ended, this move is being made for hard-nosed commercial reasons that reflect not the past but the future, in particular, globalisation and the emerging Asian Century.

One of the influential pieces of advocacy that helped kick-start the debate over the legal initials was by Victorian barrister Stuart Wood, writing in Quadrant in May 2013. Wood made the point that the law is rapidly becoming a globalised business and QC was a global brand that was recognised instantly. Senior counsel in Australia were being disadvantaged by the decision taken by our various state and territory attorneys-general in the 1990s to abandon the 400-year-old designation of Queen’s Counsel in favour of the more republican-friendly label of Senior Counsel or SC.

Wood said there was little attempt by the Attorneys-General at the time to justify the change, certainly not by reference to any potential economic costs. The Attorney-General in Victoria’s Labor government, Rob Hulls, simply said the new millennium was “an appropriate time to implement the transition”. However, as it turned out, nothing could be further from the truth. The new millennium was precisely the wrong time to implement the transition away from a globally-recognised brand to a merely provincial one.

Wood said the globalisation of the legal market, the growing hunger for legal services in the Asian hemisphere, and the establishment by foreign, mainly English, firms of a significant presence in Australia, had changed the game completely. He quoted one commentator who in 1993 had remained immune to the fashions of the day. In the New South Wales parliament in October that year, Fred Nile observed:

Legal firms in places such as Singapore … may seek to employ the services of a barrister from Australia to perhaps oppose a British barrister. They want someone of equal stature so they seek a Queen’s Counsel from Australia. It is no good saying that a senior counsel has the same status. Senior counsel will not be able to use the initials QC, which clearly indicate that the person has recognised high standards of legal experience and ability.

Nile was prophetic. Singapore has since successfully positioned itself as a hub for international arbitrations. The Singapore International Arbitration Centre, created in 1991, today has a membership of more than 15,000 companies, chambers of commerce and key industry associations. It handled 188 arbitrations in 2012 and even has its own smartphone app. While there were thirty-four International Chamber of Commerce arbitrations conducted in Singapore in 2010, there were only two in Australia that year, dropping in 2011 to just one. Wood argued:

The number of such cases will likely continue to grow. Some of them, with the rise of Australian mining and mining services companies, and with the spread of Australian solicitors throughout Asia, will involve Australian companies or Australian legal advisers; but many will not. Australian barristers competing in that area should be supported by the best, most well-known, internationally-competitive brand available … The fact of the matter is that, in Asia, brand matters; and, in the major Asian hubs, the title SC is not a clear signal of paramount recognition in the legal profession.

It should be recognised that what this brand is advertising is not simply the expertise or eloquence of legal practitioners. What stands behind the initials QC are deep-seated cultural and legal traditions and the long history of trust in its institutions generated by the British Empire. Rather than an anachronistic object of ridicule, as Greg Barns and the Labor front bench in Canberra portray it, Britain and its empire opened new and better ways of conducting social and business affairs, thanks largely to its imposition of the English rule of law.

In March 2011, I reviewed in these pages the monumental work of Bruce McPherson of the Queensland Supreme Court: The Reception of English Law Abroad, a history of the spread of law throughout the empire since the seventeenth century. In India, the cities of Calcutta, Madras and Bombay gained supreme courts in 1773, 1800 and 1824. The businessmen of these jurisdictions, McPherson writes, liked English law so much that “despite early efforts to discourage it, the appetite of Indian inhabitants for litigating in British courts proved insatiable”. The modernising sectors of the Indian economy gained enormous benefit from the process. Modern financial institutions and corporations could be established and property could be secured in ways not previously possible.

In matters of deep cultural tradition, especially surrounding marriage, the family and inheritance, the British were sensitive enough to pass statutes that guaranteed recognition of customary laws for Muslims and Hindus. In these areas, custom had been rarely codified, so in the nineteenth century the British began the process of codifying the laws of India. The same kind of legal regime, with English law for commerce and industry and customary law for marriage and family issues, was later extended to British territories in Malaya, Singapore, Hong Kong and Africa. The experience of both the rule of English law and the impartiality and incorruptibility of its courts left a legacy that is clearly still valued highly. In other words, the British Empire might be gone but some of its institutions remain alive and well.

The reintroduction of an imperial honours system obviously does not rank in the same league as the rule of law, but the principle is the same. It is part of the traditional package that comes with the British constitutional monarchy that Australians voted for overwhelmingly in the 1999 republican referendum. As the experiment of replacing QC with SC demonstrates, cultural change that appears innocuous to one generation can have unintended consequences for the next. My own egalitarian preference, for what it’s worth, is that because the Australian honours system introduced by the Whitlam government has so far worked well, any future recommendations for knights and dames should be confined solely to vice-regal personae. But anyway, this is hardly an issue on which our national reputation hangs.

The most dismal revelation of this affair is the ignorance of their cultural heritage shared by so many members of our political class and cultural elite. As the British politician Daniel Hannan reminded those lucky enough to hear him speak during his tour in February for Quadrant and the Centre for Independent Studies, the political and legal institutions inherited by the English-speaking peoples are exceptional. No other civilisation has produced such a combination of economic, social and individual freedom. Yet the readiness with which our own generation is squandering this heritage is disquieting, especially in the law. Throughout the Anglosphere today, the legislature loses ground to an activist judiciary, the common law—the first and last bulwark of liberty—is battered, while international law codes and charters are treated as gospel.

If our cultural elites were less tied to the Keatingite prejudices of the 1990s and less inclined to automatically ridicule those who disagree with them, they might not only demonstrate some true independence of thought but also some genuine maturity by acknowledging their debt to the unique traditions of the English-speaking peoples.