By Paul Gregoire and Ugur Nedim
Writing in Independent Australia, Dr Robert Woods suggested last Friday that it’s time this nation became a republic, as its current status as a constitutional monarchy continues to overtly represent the interests of the European invaders and a system that long excluded non-white peoples.
Indeed, with the recent resurgence of the Black Lives Matter movement, much of the colonial underpinnings of Australian society have been scrutinised. This has included the online questioning of another vestige of the colonial era: the wigs and robes worn of the legal profession.
No one is suggesting Australia throws out the imported Westminster legal system – with its centuries-old legacy of common law – but many do suggest that the wigs and gowns worn in the courtroom are ditched, due to their colonial era tie to the “old country”.
At present, courtroom attire is worn by judges appearing in the higher courts – district and supreme – as well as barristers that appear in these courts.
Although, magistrates and lawyers appearing in the Local Court don’t bother with such clothing.
Indeed, the theatrical garb of judges and barristers not only hearkens back to the strict class distinctions of the UK, but it also speaks to the false doctrine of terra nullius and First Nations’ stolen wealth, which isn’t to mention the distinct disconnect with this sunburnt country’s climate.
Remnants of a colonial past
Courtroom attire was originally designed in the UK in the 17th century to distinguish those of the legal profession from the rest of British society. A royal decree known as the Judge’s Rules 1635 was passed by the Commission of Westminster regulating the attire worn by judges.
Black or dark violet robes were worn on most occasions, while red robes were donned during criminal cases and special ceremonies. And although barristers weren’t required to wear courtroom dress by law, the legal professionals adopted the wearing of black robes during this period.
In this country, those working within the British established court system didn’t commence wearing the traditional garb until well into the 19th century, with it becoming universally adopted during the 1860s.
Taking up this formal wear was initially resisted by some lawyers, as they questioned the practicality of wearing the heavy clothing in the sweltering heat of pre-airconditioned courtrooms.
But as this landmass was still very much a British colony in the mid-1800s, the tradition was acquired.
And there’s another distinction to note between the robes worn by senior barristers – Queen’s Counsel (QC) or Senior Counsel (SC) – and regular barristers.
Senior counsels are referred to as silks, acknowledging the fabric their gowns are made of, as opposed to the woollen “stuff gowns” worn by junior counsels.
Ditching the wig
“The day will come when the wigs will go. That is a matter of time,” said then NSW Chief Justice of Australia Sir Garfield Barwick in 1977. The nation’s longest serving chief justice added that he doubted “whether the day will come when the robe will go”.
As James O’Neill noted in the Queensland law journal Hearsay in 2012, Sir Barwick made these comments in response to a 1975 NSW Bar Association referendum that found 61 percent of its members wanted wigs to stay, while 78 percent voted for retention of the gown.
Sir Barwick’s comments were somewhat prophetic, when it came to the courtroom he presided over for 17 years, as in 1988, High Court justices abandoned wigs, as well as traditional robes. Nowadays, these judges wear a more modern style of gown favoured in the US.
Although, barristers appearing in the highest court are still required to dress traditionally, as they are in state Supreme Courts.
There are also a number of other courts that have since ditched the wig for judges. The Victorian Supreme Court did so in May 2016, while the entire WA court system – including barristers – got rid of the wig in 2010. And certain divisions of the NSW Supreme Court no longer require a wig.
As distinctions blur
The continued requirement for barristers to dress in courtroom attire fails to reflect developments within the legal profession, which no longer places such a firm distinction between the roles of solicitors and barristers.
Solicitors have never worn traditional garb, as going back they were not permitted to appear in court independently – without an accompanying barrister – unless a judge or magistrate permitted them to do so.
Historically, solicitors would “solicit” clients and then go on to engage a barrister, who would provide advice and advocate in court. However, these days, solicitors regularly appear in court without the aid of a barrister.
The role of QCs and SCs has transformed as well. Back in the day, a QC or an SC had to appear in court aided by a junior counsel and only for very serious matters. Although, today, a QC or an SC can appear in court unaided and represent clients on relatively minor matters.
So, in taking these changes into account, it then seems no longer valid to have certain lawyers dressed in robes, while others appear in regular attire.
One only has to look to the States where there exists no distinction between solicitors and barristers. All lawyers are simply referred to as attorneys, who then specialise in different bodies of law.
The colonial hangover
A 1992 UK House of Lords consultative paper on the wearing of wigs by judges gave seven reasons as to why this practice continued. The first – and perhaps most plausible one – was that “judicial attire preserves respect for authority and the status of the court”.
Yet, in the modern multicultural Australian setting, with its foundations in the dispossession of the First Nations peoples, turning up to a courtroom presided over by a judge dressed in mid-17th century British regalia, perhaps doesn’t inspire the same respect it once did.
Rather not only do the circumstances of coming across these overly dressed officials perspiring in the Australian heat seem somewhat absurd, but the sight of this colonial hangover is more likely to rouse disdain amongst many who don’t acknowledge any personal links with the UK.