AFR Under Fire Over Naming Barristers Repeatedly Rejected for Silk
A Sydney solicitor has demanded that the Australian Financial Review remove an article naming barristers who have repeatedly applied for silk, arguing the paper has turned a selection process closed to the public into a searchable record of rejection.
Jacob Carswell-Doherty, of Jake McKinley, (pictured) wrote to AFR editor-in-chief James Chessell on 28 August, the day after publication of “Meet the barristers who apply for silk year in, year out” by legal affairs reporter Janek Drevikovsky.
His complaint is not that the AFR examined the silk selection process. It is the table naming this year’s applicants and setting beside each name the number of times that person has applied since 2016.
Consultation Is Not Publication
The letter concedes that applicants’ identities circulate within the profession. Clause 21 of the Senior Counsel Protocol provides for the list to be distributed during selection, and clause 25 of the Bar Association’s Guide to Practical Aspects puts the consultation group at around 600 practitioners and judges.
But disclosure is made to people with a role in the process, so the Selection Committee can test applicants against the qualities in clause 6. Clause 19 confines the use of that information to selection and to the President’s counselling of unsuccessful applicants. Publication to the world sits outside that purpose.
The historical counts are a separate problem. Clause 20 requires the Association and each committee member to destroy or de-identify their records once appointments are announced, so nobody should be holding ten years of applicant data.
Carswell-Doherty asks where a decade of figures came from, and reads the AFR’s own footnote conceding it has no data for 2022 as evidence the table was assembled from more than one source.
Applications closed on 31 July and appointments are due on or before 2 October. The article ran on 27 August, mid-round, while the committee consults the profession and the judiciary about these same barristers. The paper has handed those being consulted a table of past refusals about the candidates they are assessing.
The Cost, and Who Bears It
Carswell-Doherty objects to the language, which says applicants are “weeded out” and “trying their luck”.
Anyone who applies more than once becomes a “serial applicant”, a phrase he notes is usually reserved for offenders and vexatious litigants.
He also objects to the article telling readers that what makes silk worth having is higher fees and a path to the bench, where the Protocol describes an accolade based on the views of those best placed to judge.
The reporter, on his reading, recast a professional distinction as a chase after money and status, named the people who chased it and missed, and left readers with the impression they are failures without using the word.
Beyond Embarrassment
The consequences go beyond embarrassment. The list covers more than a hundred people, published so far as he knows without warning to any of them and with no chance to respond. Each now has a searchable record of rejection sitting in front of the solicitors who brief them, the clients who retain them, the barristers they appear against and the judges before whom they appear. The process itself handles this issue privately.
Unsuccessful applicants are offered a meeting with the President, and the Association funds BarCare precisely because its own wellbeing material describes high levels of stress, perfectionism and self-criticism at the Bar.
He invokes General Principles 5 and 6 of the Press Council’s Standards of Practice, which cover reasonable expectations of privacy and substantial offence or distress, each subject to a public interest test.
What Silk Actually Means
Appointment as senior counsel is not a promotion for years served. In NSW the President and Senior Vice-President sit on the Selection Committee ex officio, four further members are nominated by the President and approved by Bar Council, and the committee also includes a non-barrister representative and a non-lawyer community representative.
The Consultation Group comprises senior counsel, at least thirty junior counsel and at least thirty solicitors experienced in litigation. Applicants are not interviewed.
Rejection is not evidence of a poor barrister. The standard is deliberately high, competition varies year to year, and repeated applications are unremarkable.
New Zealand: A High Bar, Differently Guarded
New Zealand takes a different route to the same idea. King’s Counsel are appointed by the Governor-General, by Letters Patent under the Royal prerogative, on the recommendation of the Attorney-General and with the concurrence of the Chief Justice.
The guidelines are issued jointly by the Attorney-General and Chief Justice and published by Crown Law.
Standard-route candidates must be barristers sole and must continue practising independently as barristers sole. Excellence is the overarching requirement, with candidates assessed on legal knowledge, persuasive oral or written advocacy, independence, integrity, leadership and commitment to access to justice.
The guidelines are blunt on the point at issue in Sydney, which state that the standard will not be reached merely by completing a certain number of years in practice. Longevity alone does not get the wig over the line.
Separately, the Governor-General may appoint King’s Counsel for extraordinary contributions to the law, drawn from academia and public service, with no application required. The 2026 round closed on 22 June, with appointments expected in October.
England and Wales: The Numbers Answer the Question
Recommendations in the UK are made by an independent King’s Counsel Selection Panel, not by the Bar. It comprises two judicial members, two barristers, two solicitors and five lay members including the chair, who is always a layperson.
The panel recommends to the Lord Chancellor and appointments are made by the King on his advice. Applicants may be barristers in private practice, employed barristers or solicitor advocates with higher rights of audience.
Candidates are assessed across five competencies: understanding and using the law; written and oral advocacy; working with others; diversity action and understanding; and integrity. Assessments are taken from judges and practitioners familiar with the candidate’s work, and those shortlisted are interviewed.
The system is selective and getting more so. In the 2025 competition, announced on 23 January 2026, 96 KCs were appointed from 325 applications, a success rate of 29.5 per cent and the seventh consecutive annual fall.
The English figures also answer the AFR’s framing on its own terms. Of the 96 appointed, 48 were repeat applicants, and repeat applicants succeeded at a higher rate than first-timers, 32 per cent against 27.
Applying more than once is not the mark of a barrister who cannot cut it. On the numbers, it is the mark of one who eventually does.
Why the Letter Matters
The strongest point may not be whether the AFR was entitled to publish. It is whether there was sufficient public interest in identifying unsuccessful applicants individually.
Carswell-Doherty accepts that statistical findings about silk can be reported, and goes further. He says the findings stand up without any of the names. The four chambers producing the most silks, the gender split, the average of two applications each: all of it comes from the totals, and the article makes those points without the table doing any work.
He has asked the AFR to do five things by 5pm on Wednesday 2 September: take the article down from the site, apps and any syndicated feed; strip the names from any republished, archived or cached version; publish an apology to the barristers named and a separate apology from Drevikovsky; disclose where the application figures came from; and confirm the list will not run again.
Failing that, he will take it to the Australian Press Council, though he would rather the paper dealt with it itself. He writes in his own capacity and acts for none of those named.
All three jurisdictions treat silk as an exceptional distinction requiring close scrutiny by senior practitioners and judges. Inevitably, many accomplished advocates apply and miss, sometimes repeatedly. There is a legitimate media interest in whether those systems are fair, diverse and genuinely merit-based.
Whether that requires a searchable roll-call of who tried, how often, and how often they failed is another matter.
Transparency about the system and publicity about individual disappointment are not the same thing.
LawFuel has approached the Australian Financial Review for comment.