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Articles, Issue 90: Dec 2022

In the Matter of Her Majesty’s Counsel

BY The Honourable Justice Simon Steward - High Court of Australia AND Edward Gisonda
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Tuesday 29th November, 2022
In the Matter of Her Majesty’s Counsel

Thanks are extended to the Authors for allowing Hearsay to reproduce the following paper. It was initially published in the Victorian Bar News in December 2020. Given the recent demise of Her Majesty Queen Elizabeth II, and consequent change in the prescribed silk rank descriptor (ie “King’s Counsel), the paper content proved prophetic.

A few years ago, Simon Steward QC (now the Hon Justice Steward of the High Court of Australia), and Eddy Gisonda wrote an advice for the Bar Council at the request of the then president, Jennifer Batrouney QC.  The question was this: what happens to QCs when the Queen dies? From time to time, since then, various silks and other luminaries have asked to see the advice.  With permission, Bar News is publishing this advice for the benefit and interest of members, so that it may be on the public record.

  1. What are the consequences for members of counsel who have been appointed to be one of Her Majesty’s Counsel for the State of Victoria, on the demise of Her Majesty Elizabeth II the Queen of Australia, and the accession to the throne of the present male heir apparent? The answer is that those appointed Queen’s Counsel will not need to seek new letters patent of appointment. Their current appointments will continue automatically, and by custom, they will be known as “King’s Counsel” or “K.C.” without the need for anything further to be done.
  2. Queen’s and King’s Counsel traditionally were appointed by letters patent under the Great Seal.[1] Issuance is a prerogative power of the Crown,[2] exercisable in Victoria by the Governor, as representative of the Sovereign. 
  3. The origins of the rank lie in an expedient taken by Elizabeth I in about 1594 to retain for the Crown the services of Francis Bacon—or at least to ensure his services could not be used against the Crown—who was appointed “learned counsel extraordinary to Her Majesty” but without any patent or fee.[3] It is not known what came of the appointment immediately on the demise of Elizabeth I, but Bacon had the favour of King James I and after receiving a knighthood in 1603, the King authorised letters patent in 1604 that appointed Sir Francis as “one of our counsel learned in the law” and granted him an annual stipend. This is the first known record of letters patent being issued for such purpose.
  4. The precedent was followed once by King James I in 1607 who granted similar letters patent to Henry Montague, later the Earl of Manchester. Montague held the rank for four years until he was appointed King’s Serjeant. Sir Francis had remained one of His Majesty’s Counsel during his time as Solicitor-General and then as Attorney-General, but in 1618, he was appointed Lord Chancellor and this determined his appointment as King’s Counsel. Thereafter the rank fell into temporary disuse.
  5. Charles I resumed the practice of appointing King’s Counsel and, during his reign, made nine appointments and instituted the still-continuing practice of granting the office at pleasure rather than for good behaviour. The Crown could not entirely rely on the advice of the most senior barristers—the serjeants—who tended to oppose the interests of the Crown in matters of land law; hence the use of King’s Counsel whose sole original function was to advise the Crown primarily by serving as an assistant to the Attorney-General or Solicitor-General.[4]  
  6. At common law, all appointments at pleasure are determined on the death of the sovereign,[5] which included those who had at this time been appointed King’s Counsel.[6] Following the Restoration, no living King’s Counsel was re-appointed by Charles II, who proceeded to appoint more new King’s Counsel than any of his predecessors. A declaration by the King in Council in 1671 gave his Majesty’s Counsel precedence over the serjeants, which led to an increase in the appearances of King’s Counsel in all courts, other than the Common Pleas.[7]
  7. During the 18th century, the office of King’s Counsel came to be used to bestow rank and precedence on an individual, rather than as a form of engagement of forensic assistance for the Crown.[8] This had a number of consequences. First, appointment to the office became more frequent. Second, by 1831, King’s Counsel no longer were paid an annual stipend or fee by the Crown, and barristers were no longer required to vacate their seat in Parliament upon being appointed a King’s Counsel.[9] Third, and most importantly for present purposes, it precipitated the emergence of the custom that the office, though at pleasure, should enure for the life of the holder.     
  8. In 1685, there were approximately 13 King’s Counsel, and James II re-appointed eleven of them. Although William and Mary did not reappoint many of the King’s Counsel who were alive following the death of King James II, their reign saw the passage of 7 & 8 Will III, c. 27, s 20, which provided:
    • That no commission either Civil or Military shall cease determine or be void by reason of the Death or demise of His present Majesty or any of his Heires or Successors Kings or Queens of this Realme but that every such Commission shall bee continue and remaine in full force and virtue for the space of Six Months next after any such Death or Demise unlesse in the meane Time superseded determined or made void by the next and immediate Successor …
  1. This provision was later explained by a statute of Queen Anne to include a “patent or grant of any office or employment”.[10] Queen Anne had reappointed approximately half of the King’s Counsel surviving the death of her predecessor, and George I similarly re-appointed approximately half of the Queen’s Counsel surviving the death of his predecessor. Those whose offices were renewed received new individual patents and were sworn in again. 
  2. It appears that George II renewed all of the surviving King’s Counsel following the death of George I, while George III renewed approximately ten of the existing 14 King’s Counsel on his accession.[11] In 1817, as a one-off measure, it was provided in 57 Geo. III, c. 45, that all offices held during pleasure should continue following the demise of George III without the need for renewal by patent. Thence it was not necessary for George IV to renew any King’s Counsel, but in 1830, it fell to William IV to reappoint those King’s Counsel who had been first appointed before 1820. William IV instituted the practice of according specific precedence to King’s Counsel by reference to a previously-appointed colleague. The Colonial Offices Act 1830 (UK) (1 Will. IV, c 4, s 2) also was enacted during the reign of William IV, which provided that:
    • No patent, commission, warrant, or other authority, for the exercise of any office or employment, civil or military, within any of his Majesty’s plantations or possessions abroad, determinable at the pleasure of his Majesty, or of any of his Majesty’s heirs and successors, shall by reason of any future demise of the crown be vacated or become void until the expiration of eighteen calendar months next after any such demise of the crown as aforesaid.
  1. On the accession of Queen Victoria, each King’s Counsel (save a very small number who were not reappointed and thereby lost their office) received a new individual appointment as Queen’s Counsel. This was the last time that fresh letters patents were issued to individually named members of the Inner Bar on the demise of the Crown in the United Kingdom. 
  2. It is here convenient to track developments as were occurring in the colony of Victoria. On 10 August 1863, the Governor of Victoria had issued the first letters patent in the colony, appointing the Minister of Justice, Archibald Michie, and the Honourable Richard Ireland, to be one of Her Majesty’s counsel. This was ten years after the appointment of the first five Queen’s Counsel in New South Wales. The appointments were governed by prerogative regulations made by the Governor-in-Council on 7 December 1857. The regulations provided that, with the exception of those having held the office of Attorney-General or Solicitor-General, no barrister should be appointed Her Majesty’s Counsel except on the recommendation of the Chief Justice to the Governor in Council.[12] In his letters to Messrs Ireland and Michie explaining his intention to recommend their appointment, George Higginbotham, who was then the Attorney-General for Victoria but later the Chief Justice of the Supreme Court of Victoria, said:[13]
    • No Queen’s Counsel have hitherto been nominated in this Colony. I believe that such appointments would be acceptable to the profession and would prove beneficial to the Bar by bringing it into closer correspondence with the state in which the profession exists at home. But if Queen’s Counsel are to be introduced here I think that care must be taken that the office shall exist in reality as well as in name; and that the conditions which are understood to be attached to the office, and which may in some cases be felt to be onerous, shall be accepted together with the title of distinction. A silk gown is, I believe always given at home on the understanding that it is to be retained for life, or given up only under special and unforeseen circumstances. A Queen’s Counsel, moreover, is forbidden by the professional usage to practise in inferior courts, to draw pleadings and generally to undertake business which commonly falls to the share of the junior member of the profession. I am aware that their Honours, the judges of the Supreme Court, concur in the opinion that these and all other obligations attached to the office of Queen’s Counsel in England and Ireland ought to be observed and enforced in Victoria. (emphasis ours)
  1. We have already made reference to the Colonial Offices Act 1830 (UK). The Electoral (Amending) Act 1888 (Vic) contained various provisions addressing the demise of the Crown, including s 52, which provided that:
    • Every commission warrant or other authority for the exercise of any office or employment of any kind or nature within Victoria issued or exercised by the Governor in Council or the Governor or by any other person in the name and on behalf of Her Majesty or of any of her successors to the Crown in virtue of his office or under the authority of any Act of the Imperial Parliament or of the Parliament of Victoria or of any rules or regulations made thereunder respectively shall continue in full force notwithstanding any demise of the Crown and be of the same effect as if no such demise had happened, anything contained in an Act of the Imperial Parliament passed in the first year of the reign of His late Majesty King William the Fourth, chapter four, to the contrary notwithstanding.
  1. The effect of this provision was to provide for letters patent to continue and remain in full force beyond 18 months after the demise of the Crown in the colony of Victoria. This provision was re-enacted in identical form, as s 5 of the Constitution Act Amendment Act 1890 (Vic), which remained in force following the death of Queen Victoria.
  2. On the accession of Edward VII in January 1901, all Queen’s Counsel in the United Kingdom were continued in office, by general or encompassing letters patent appointing them to be of his Majesty’s Counsel.[14] This was necessary because of 6 Anne, c. 41, s 8, which provided that upon the demise of the Crown, all civil offices continued for six months only. Those who were Queen’s Counsel could obtain new letters without paying a fee.[15] 
  3. In the interregnum between the demise of Queen Victoria, and the issuing of the new patents by Edward VII, there appeared to be some unnecessary confusion in the United Kingdom about whether those who were a Queen’s Counsel were automatically to be called a King’s Counsel.
  4. On 26 January 1901, being four days after the accession of King Edward VII, the Law Journal reported that[16]:
    • The most common phrases of the legal world have undergone a sudden change: the ‘Queen’s Bench Division’ has become the ‘King’s Bench Division’, and the familiar title of ‘Q.C.’ is known in the Courts no more. 
  1. On the same day, it was reported in the Law Times that “with the death of Queen Victoria, the suffix ‘Q.C.’ disappears”.[17]
  2. The following week, however, the editors of the Law Journal said[18]:
    • It is curious to note that many of the daily papers, on the demise of the Crown, at once changed the familiar title of Queen’s Counsel into that of King’s Counsel, and appended the letters K.C. to the names of the ‘silks’. Whether in technical accuracy such an immediate change was justifiable is somewhat doubtful. The legal position appears to be strictly this. Certain members of the Bar, in numbers not a few, were by Letters Patent under the Great Seal of the late Sovereign appointed as her Majesty’s counsel learned in the law. The office of Queen’s Counsel being held at the pleasure of the Crown would formerly have been vacated by the demise of the Crown. By virtue, however, of the statute of 6 Anne, c. 41, s.8, every person in such office is continued in office for six months after the demise of the Crown unless sooner removed by the new Sovereign. The terms of his Majesty’s recent proclamation confirm this statutory renewal of offices held under the Crown. But it is to be observed that the result of the statute and the proclamation is merely to effect an extension of office for six months without in any way changing the title or function of the holders of such offices.It would seem, therefore, that those who in the last reign attained the dignity of silk are still correctly described as Q.C.’s, being in fact by their patents her late Majesty’s Counsel. They will, it is submitted, only become King’s Counsel after patents have been issued to them under the Great Seal appointing them as such. That this is so seems clear when it is recollected that it is competent to the King to refuse to sign the warrant for the issue of the patent to any particular individual, as indeed was demonstrated on the demise of Queen Caroline, when George IV for personal reasons refused to appoint Brougham and Denman as King’s Counsel, they having held the appointments of Attorney-General and Solicitor-General respectively to Queen Caroline.The appointment of a Queen’s Counsel is from the terms of the patent creating it purely a personal one. No mention is made therein of the successors of the Crown, and a Queen’s Counsel, on the demise of the Queen, can no more become a King’s Counsel than one of her late Majesty’s physicians can become one of his Majesty’s physicians otherwise than by express appointment. It is noteworthy that the sixteen gentlemen who were approved as Queen’s Counsel just prior to the death of the Queen were sworn in as King’s Counsel before the Lord Chancellor in his private room at the House of Lords on January 31, and on the same day went through the ceremony of being called within the Bar at the Law Courts. This is consistent with the view expressed above, as the patents issued to these gentlemen expressly appoint them to be his Majesty’s Counsel. All the other gentlemen called within the Bar during the last reign will presumably in due course receive new patents as King’s Counsel, and will subsequently take the usual form of oath as Counsel of his Majesty King Edward VII.   
  3. There appeared to be similar confusion elsewhere. A record of an exchange in court between Mr Justice Boucaut of the Supreme Court of South Australia and Sir Josiah Symon, KCMG, a month later states that:[19] 
    • At the Supreme Court on Friday morning Mr Justice Boucaut said he had noticed that since the death of the Queen practitioners who held the position of Queen’s counsel had been designated by the letters “K.C.”. According to his reading of the law that was incorrect. Under the Common Law the commission of Queen’s counsel would lapse immediately on the demise of the Crown, and unless new patents were issued lawyers holding that office would not be entitled to wear silk. By virtue of a statutory enactment, however, they were entitled to retain the title for six months after the death of the Sovereign by whom it was conferred. Sir Josiah Symon said he agreed with his honor that there was no authority for the designation “King’s counsel.” They were still Queen’s counsel and only entitled to wear the silk gowns up to the end of the term named. His Honor said that he would continue to use the letters Q.C. for the period of six months from the death of the Queen.
  4. In Victoria, of the 24 appointments of Queen’s Counsel in the life of the colony, 14 were still alive on the accession of King Edward VII. On 8 February 1901, Isaac Isaacs (then the Attorney-General of Victoria) issued a notice in the Government Gazette that the Governor in Council had appointed certain named gentlemen to be His Majesty’s Counsel.[20] Named thereunder were each of the 14 living Queen’s Counsel in order of appointment, followed by three new appointments: the Honourable James Casey, George Neighbour, and Frank Gavan Duffy (later the Right Honourable Sir Frank Duffy, KCMG, Chief Justice of the High Court of Australia).  The notice then continued as follows:
    • And His Excellency has been pleased to direct that they shall have place, procedure, and precedence in His Majesty’s Courts or elsewhere in the order in which their names are herein set forth, and that Letters Patent be issued accordingly: Provided that notwithstanding anything contained in the said Order or in the Regulations of His Excellency the Governor in Council, dated the 7th day of December, 1857, it shall not be necessary for any of the said gentleman to whom Letters Patent have heretofore been issued constituting, ordaining, and appointing him a Counsel of Her late Majesty Queen Victoria to take out any further Letters Patent.
  1. Although it was not immediately necessary to make this Order because of s 5 of the Constitution Act Amendment Act 1890 (Vic), there may have been a number of reasons why the Order was made in any event. First, the Governor in Council may have thought it desirable to resolve the debate identified by the editors of the Law Journal as quoted above. Second, there might possibly have been a question about the combined operation of the statute 6 Anne, s 5 of the Constitution Act Amendment Act 1890, and the Colonial Laws Validity Act 1865 (28 & 29 Vict. c. 63, s 2).[21] Third, there had not been a change of monarch for over 62 years, and the Order may have been issued as an abundance of caution in all of the circumstances, particularly when a similar course had been adopted in the United Kingdom. Fourth, in 1897, general precedence that had traditionally been granted by the appointment of Queen’s Counsel in the United Kingdom was confined in that country to the courts.[22] The Order may be said to have served the purpose of confirming this change in the state of Victoria for all King’s Counsel. Fifth, with the confining of precedence to the courts, and the appointment of new King’s Counsel for the first time, it might have been thought convenient to confirm the order of seniority for all King’s Counsel thereafter. 
  2. Any doubt or confusion on this matter was removed in July 1901, with the passage of the Demise of the Crown Act 1901 (UK). Sub-section 1(1) of the Act provided that:
    • The holding of any office under the Crown, whether within or without His Majesty’s dominions, should not be affected, nor should any fresh appointment thereto be rendered necessary by the demise of the Crown. 
  1. The Demise of the Crown Act 1901 (UK) remains in force in the United Kingdom today. In Victoria, s 11(1) of the Constitution Act 1975 (Vic) continues to provide that all appointments by the Governor continue in force, notwithstanding the demise of the Crown. As well, the Demise of the Crown Act 1901 (UK) applies by paramount force in Victoria.[23]
  2. By reason of this statutory regime, all King’s and Queen’s Counsel now keep their appointment for life unless specifically revoked, and no action is necessary on the demise of the Crown. As far as we are aware, no fresh letters patent were issued and no other action was gazetted in 1910, 1936,[24] or 1952.
  3. Following the death of King George VI, it was reported in the Law Times that[25]:
    • Formerly on the death of the Sovereign the emphasis was on the change of the royal person, the fresh start. Not only was there the new Great Seal, the new coinage, the new regnal year, Parliament was automatically dissolved and civil and military offices under the Crown were similarly automatically vacated.  Prosecutions and actions were suspended. For a while the whole Government of the realm came legally to a standstill. Throughout the 18th and 19th centuries the emphasis was shifting to continuity. The convenience of this was patent though perhaps there was sometimes more to be said in favour of the fresh start than may appear at first sight. … Be that as it may, judges were continued in their office; military officers were continued in their commissions. The continued life of Parliament was assured by the Representation of the People Act, 1867. And finally, by the Demise of the Crown Act, 1901, it was enacted that “the holding of any office under the Crown . . . shall not be affected, nor shall any fresh appointment thereto be rendered necessary, by the demise of the Crown.” Thenceforward, to take a particular instance, though judges might adjourn their courts as a symbolic gesture on the announcement of the death of the Sovereign; there was no legal necessity for them to renew the judicial oath or the oath of allegiance. Similarly King’s Counsel retain their patents without any fresh appointment. In the reign that is opening the change is notably marked for the lawyers by the return, after half a century, to the styles “Queen’s Bench Division” and “Queen’s Counsel.” (It happens that there are still two men living who Were Queen’s Counsel before they·were King’s Counsel.) But beneath such forms as these and behind the splendid ceremonial of the Proclamation there remains the principle of continuity that the Sovereign never dies. The King is dead. Long live the Queen!
  1. In our law “the king is said never to die”, for immediately on the decease of the reigning sovereign, the right of the crown vests, eo instanti, upon their heir.[26] So too, in the event that a King succeeds a Queen or vice versa, the title and accompanying post-nominal letters of any of His or Her Majesty’s Counsel will change statim.[27] The law reports show King’s Counsel retaining their rank following each demise until 1952 when they became Queen’s Counsel, seemingly without delay.
  2. Speaking of the relationship between Queen’s Counsel and the Crown, Professor Arnheim has said[28]:
    • A barrister taking silk in, say, 1841, early in the reign of Queen Victoria, would probably have spent the rest of his life as a ‘Queen’s Counsel’, as the Queen’s reign continued for another sixty years. But if by chance our hypothetical silk was still alive on 22 January 1901, he would automatically have become a ‘King’s Counsel’ on that day, which marked the death of the old Queen and the accession of King Edward VII. All silks changed from QC to KC on that day, and all silks changed from KC to QC on 6 February 1952, when the death of King George VI brought Queen Elizabeth II to the throne. No new letters patent are needed for such a change to take place, and none are conferred. In fact, there is no real change of title at all, because, in formal terms, a silk is appointed to act as counsel to the Crown, regardless of who the monarch of the day may be, and his proper title is neither ‘QC’ nor ‘KC’ but simply ‘one of Her Majesty’s counsel’ or ‘one of His Majesty’s counsel’, as the case may be …
  1. The position occupied by Queen’s Counsel is in the nature of an office under the Crown, in some respects a “very special type of office”,[29] although any duties which it entails are almost as unsubstantial as its emoluments; and it is also of the nature of an honour or dignity to this extent that it is a mark and recognition by the Sovereign of the professional eminence of Counsel.[30] Further, that the patent of a Queen’s Counsel creates an “office under the Crown”[31] or an “office or employment of any kind or nature within Victoria issues or exercised by the Governor”[32] is clear from its terms.  As we have already mentioned, King’s Counsel and Queen’s Counsel received a yearly stipend or fee from the Crown, and until the discontinuance of that fee in about 1831, a member of Parliament who was a barrister vacated his seat on appointment, thus showing that the appointment was regarded as an office under the Crown. Serjeant Pulling, in his work on the Order of the Coif, states that the appointment of King’s Counsel was treated in Westminster Hall as an office under the Crown, however indefinite its duties and obligations.[33]
  2. It follows that on the next demise of the Crown, and unless there is any legislative amendment to the contrary, each of Her Majesty’s Counsel for the state of Victoria will immediately and automatically become one of His Majesty’s Counsel for the state of Victoria. The legislation, custom and practice to which we have referred above put beyond doubt that immediately following the death of the Queen of Australia, each of Her Majesty’s Counsel for the State of Victoria will retain their letters patent, but be designated one of His Majesty’s Counsel, or “King’s Counsel” or “K.C.”, thenceforth.
  3. We have examined the terms of appointment of Queen’s Counsel in their current form, including the form that existed before 2000, and the present form that was introduced in 2014. The language of appointment is entirely consistent with this conclusion. There are no words used that indicate that the appointment is limited to the life of our current Queen. Nor do any other temporal limitations appear.
  4. Finally, the demise of the Crown has no impact on those members of counsel appointed to be one of the Senior Counsel for the State of Victoria, and who have not been appointed one of Her Majesty’s Counsel. These members of counsel do not become a King’s Counsel following the demise of the Crown. 

[1] For a more detailed explanation of the nature and history of the office, see J Sainty, A list of English Law Officers, King’s Counsel and Holders of Patents of Precedence (1987, Selden Society Supplementary Series, vol. 7); J Baker, Collected Papers on English Legal History (2013, vol. 1), 124 ff.; W Holdsworth, A History of English Law (1924 vol. 6), 472 ff.; W Holdsworth, “The Rise of the Order of King’s Counsel and its effects on the Legal Profession” (1920) 36 L.Q.R. 212.  Separately, see J D Merralls, “Some Marginal Notes About Queen’s Counsel” (1994) 89 Vic Bar News 51.

[2] Attorney-General for Dominion of Canada v Attorney-General for Province of Ontario [1898] AC 247 at 252; Waters v Acting Administrator of Northern Territory (1993) 46 FCR 462 at 473; J D Merralls, “Some Marginal Notes About Queen’s Counsel” (1994) 89 Vic Bar News 51 at 51.

[3] Before this, barristers who advised the Crown and who provided assistance to the Attorney-General and the Solicitor-General were sometimes styled “King’s Counsellors”: see A Dean, A Multitude of Counsellors (1968), 259.

[4] M T W Arnheim, “Silk, Stuff and Nonsense” (1984) 101 S.A.L.J. 376 at 378; see also W J V Windeyer, Lectures on Legal History (2nd edition, 1949), 157.

[5] In re Cardew; Ex parte Bank of Australasia (1901) 10 QLJ 176 at 178.

[6] J H Baker, The Common Law Tradition (2000), at 89 (cited in fn. 88, M Blackwell, “Taking Silk: An Empirical Study on the Award of Queen’s Counsel Status 1981-2015” (2015) 78 M.L.R. 971).

[7] J D Merralls, “Some Marginal Notes About Queen’s Counsel” (1994) 89 Vic Bar News 51 at 51.  As Mr Merralls says, further, the Serjeants retained their right of exclusive audience in the Court of Common Pleas until 1846.

[8] W J V Windeyer, Lectures on Legal History (2nd edition, 1949), 157; Halsbury’s Laws of England (4th edition), vol. 3(1), at [359]; J D Merralls, “Some Marginal Notes About Queen’s Counsel” (1994) 89 Vic Bar News 51 at 51.

[9] (1901) 36 L.J. 39, at 41.

[10] 1 Anne c. 2, s 1.

[11] The reasons for not reappointing a number of the existing King’s Counsel are not known to us, but it is possible that some (or all) of those who were not reappointed did not apply.  

[12] A Dean, A Multitude of Counsellors (1968), 259.

[13] A Dean, A Multitude of Counsellors (1968), 259-260. 

[14] [1901] AC v; (1901) 110 L.T. 371, at 371. The announcement in the London Gazette was as follows:

The King has been pleased, by several Letters Patent under the Great Seal, to appoint and declare:-

That the persons who were appointed by Her late Majesty to be of Her Majesty’s Counsel learned in the law shall be of His Majesty’s Counsel learned in the law, with all such precedence, power, and authority as were originally granted to them

[15] (1901) 110 L.T. 347, at 348.

[16] (1901) 36 L.J. 39, at 39.

[17] (1901) 110 L.T. 279, at 280.

[18] (1901) 36 L.J. 51, at 51.

[19] The Adelaide Advertiser, 9 March 1901, at 6.

[20] Victoria Government Gazette (No. 21), 8 February 1901.

[21] See, e.g., In re Cardew; Ex parte Bank of Australasia (1901) 10 QLJ 176 at 178.

[22] For a copy of the letters patent, see J Sainty, A list of English Law Officers, King’s Counsel and Holders of Patents of Precedence (1987, Selden Society Supplementary Series, vol. 7), at 297. 

[23] Imperial Acts Application Act 1980 (Vic), s 4(1)(b); J Selway, The Constitution of South Australia (1997), at [2.3.2]; G Taylor, The Constitution of Victoria (2006), at 68 (footnote 25); A Twomey, The Constitution of New South Wales (2004), at 607 (footnote 118). See also letter from the Attorney General of Victoria to the Chair of the Standing Committee on Legislation, Legislative Council of Western Australia, 21 May 2015, in response to that Committee’s Inquiry into the Demise of the Crown Statute.

[24] Whereby a “demise” of the Crown was effected by instrument and statute: see s 1(1) of His Majesty’s Declaration of Abdication Act 1936 (UK).

[25] (1952) 213 L.T. 83, at 84.

[26] W Blackstone, Commentaries on the Laws of England (1893 edition), 196, 249.  

[27] Commencing on 4 February 1952, Rose Heilbron, KC, appeared for solicitor Louis Bloom on a murder charge at Durham Assizes in Yorkshire. On 6 February, when Bloom finished giving evidence, Mr Justice Hallett announced that His Majesty the King George VI had died and adjourned the court for 10 minutes.  As her biographer explains:

Thereafter everyone wore court mourning—counsel swapping normal bands for white mourning bands. Overnight the King’s Justices became the Queen’s Justices and King’s Counsel became Queen’s Counsel. 

Following the conclusion of the case, on 10 February 1952, The News Chronicle acknowledged the change in her title, running a two-page spread entitled “Rose Heilbron Q.C. Ends Another Brilliant Case. Judge Talks of her Eloquent Advocacy”: see H Heilbron, Rose Heilbron: Trailblazer and Legal Icon (2012), Chapter 10.

On 18 February 1952, Time Magazine reported that:

In London’s High Court, King’s Counselor Harold Shepherd had just finished cross-examining a defendant when the news came. The court adjourned. Ten minutes later, the lawyer resumed the floor as Queen’s Counselor.

[28] M T W Arnheim, “Silk, Stuff and Nonsense” (1984) 101 S.A.L.J. 376, at 378-379.

[29] Waters v Acting Administrator of Northern Territory (1993) 46 FCR 462 at 473.

[30] Attorney-General for Dominion of Canada v Attorney-General for Province of Ontario [1898] AC 247 at 252; Waters v Acting Administrator of Northern Territory (1993) 46 FCR 462 at 473.

[31] Demise of the Crown Act 1901 (UK), s 1(1).

[32] Constitution Act 1975 (Vic), s 11(1).

[33] Serjeant Pulling, The Order of the Coif (1884).