Speaking publicly for the first time since being granted the SC status – which has prompted Opposition calls for him to hand it back or stand down – Rau distanced himself from the growing political fallout, saying he simply “put in an application and left it to the processes of the court how they dealt with that application”.
But Chief Justice Chris Kourakis today told reporters that application was considered – albeit with his own abstention from debate – despite arriving after the June 30 deadline, which meant Rau’s name was not initially circulated on a shortlist distributed for broader consultation.
“The reason for that difference was that it was thought, given his position, the sensitivity of a consultation which is wide and then rejection would be difficult,” he told media.
Rau said he made the application “some time ago”, adding: “I believe it was late for this round, [but] it might have been early for the next round.”
I’m entitled to rest on the judgement of the court
“There was no contrivance on my part to wait for the deadline,” he insisted.
“In making an application I was placing myself on the hands of all the judges of the Supreme Court to determine the matter in whatever form they deemed appropriate… I’m ultimately much happier to place myself in that position of being judged by them, than of being judged in terms of my suitability by my political opponents.”
And his political opponents have been vocal on the matter, with Shadow Attorney-General Vickie Chapman saying: “The Attorney-General must make a decision: he either gives [the title] back or he gets out.”
“That’s the choice he has, and he ought to be able to deal with that straight away,” she said today.
Rumours have been rife for some time in the legal profession that Rau, 57, could be interested in becoming the next president of the SA Employment Tribunal, when the position becomes available in November next year – just four months before the next state election.
It has also been reported that he has been linked to a possible move to the District Court.
But Rau insisted his Senior Counsel application was “not in any way a stepping stone to any other role”.
“Can I make it clear – my intention is to continue my present role,” he said.
“I intend to continue in the role and indeed to be a candidate at the election in 2018… so for those people seeing some other future for me, they can relax.”
The Attorney-General must make a decision: he either gives it back or he gets out
He said “some of the hyperbole [around his title] is either mistaken or malicious”, blaming the scuttlebutt on legal politicking.
“If any of you spent any time on Gouger St, I’ll assure you you’ll hear lots of these things – it’s just what the profession’s like,” he told reporters.
Of the broader uproar about his title, he said: “Some people only see thing through a political benefit prism”.
“That’s not the way I look at things,” he said, adding the issue had “nothing to do particularly with politics”.
“I’ve been a member of the legal profession for 35 years and a member of the bar for the best part of 20 years,” he said.
Kourakis today conceded the application had put the judiciary in an “awkward” position, but Rau refused calls to hand the title back.
“The matter has already been dealt with; the matter is now a matter of record,” the Attorney said.
“I made an application, I put myself in the position where the court could assess that application… they decided to grant that application.
“I’m entitled to rest on the judgement of the court, just as any other citizen of the state is entitled to.”
Of the fact his application was given consideration despite its lateness, he said: “All I can say about that is that court in receiving my application dealt with it as the court saw fit.”
“As the last 24 hours have shown, I’m not without my critics out there – the law is a lively place. If somebody has an issue they, I’m sure, feel free to express that issue [and] I’ve every confidence whatever feedback the court received would have been taken into account.”
But he insisted there was no conflict, arguing “this is completely outside the executive arm of Government”.
Kourakis today conceded he could “understand why some people might say” Rau should have waited until he had left politics before seeking the elite Senior Counsel title – which formally replaced Queen’s Counsel in SA in 2008.
However, the chief justice ventured in an interview on ABC891 this morning, “it would not be a good thing if people who were at that standard were dissuaded from going into public office on the basis that… an acknowledgment that they were entitled to wasn’t considered”.
“But it is awkward, there’s no doubt about that,” the Chief Justice said of the appointment.
“It does make it awkward [and] the judges were conscious of that, and thought carefully about the procedure they should adopt.
“I was present in the meeting but abstained… because it if were thought that I was supporting the Attorney, some might think I was compromising my position in terms of what I have to do to maintain the independence of the judiciary against the executive.
“On the other hand if it were thought that I was opposing the Attorney’s appointment then that would make the relationship I’ve got to have with him very difficult.”
Chapman said Kourakis’s comments had made it clear “the whole process has compromised their position”, and demanded Rau renounce his title or leave politics.
Kourakis said this was the first time SC appointments were decided by all Supreme Court judges collectively, instead of by the Chief Justice alone, and that it was resolved that “no different criteria should be applied to people in public office” applying for the title.
There is certainly precedent for serving politicians seeking the title; federal Attorney-General – and Queensland Senator since 2000 – George Brandis became an SC in 2006, and later opted to take up the title of Queen’s Counsel when the original title was returned in his home state.
Interestingly, Rau has also spoken in favour of standardizing the returned use of “QC” across all states, telling News Corp last year: “I think most people would recognise a QC as being a senior lawyer appointed to a prestigious position [while] many struggle to instantly recognise SC in the same way.”
In a post on his blog, former Director of Public Prosecutions Stephen Pallaras – a QC, and frequent critic of the SA Government – wrote: “I don’t wish to be unfair by raising uncomfortable issues of conflict of interest or indeed the separation of the executive and the judiciary, but can somebody list the achievements that Mr Rau has made as a lawyer to justify being elevated to Senior Counsel?”
“His list of failures as a politician is infamous, but this gong is meant to be a reward based on his exceptional work as a lawyer,” Pallaras said.
“What exactly is that?”
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