find the latest legal job
Corporate Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Highly-respected, innovative and entrepreneurial Not-for-Profit · Competency based Board
View details
Chief Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Dynamic, high growth organisation · ASX listed market leader
View details
In-house Projects Lawyer | Renewables / Solar | 2-5 Years PQE
Category: Generalists - In House | Location: All Australia
· Help design the future · NASDAQ Listed
View details
Insurance Lawyer (1-3 PAE)
Category: Insurance and Superannuation Law | Location: Sydney NSW 2000
· Join a dynamic Firm · Excellent career growth opportunity
View details
In-house lawyer 1-4 PAE
Category: Generalists - In House | Location: Adelaide SA 5000
· Leading Brand · Report to a Dynamic Legal Counsel
View details
High Court judge calls for independence

High Court judge calls for independence

A HIGH COURT judge has defended the independence of the legal profession, arguing that lawyers need to be free to carry out their work without fear of reprisal or intimidation, no matter who…

A HIGH COURT judge has defended the independence of the legal profession, arguing that lawyers need to be free to carry out their work without fear of reprisal or intimidation, no matter who they represent.

Like judges, lawyers should enjoy their duty to advance the interests of their clients fearlessly, Justice Michael Kirby told a conference in Queensland. He said challenges to lawyers’ independence arise where they are not able to form independent professional organisations, when they are limited in the clients they may represent, and when they are threatened with disciplinary action, he said.

Independence is also threatened, said Kirby, when lawyers are in any way intimidated or harassed because of their clients or the work they do, and when they are subjected to unreasonable interference in the way they perform their duties.

In a speech on Principle of Independence, Kirby pressed for the necessity of an independent legal profession. He said that when judges and lawyers demand independence, this often irritates “those who are used to being obeyed and feared”. But, said Kirby, “the rule of law will not prevail without assuring the law’s principal actors — judges and practising lawyers and also legal academics — a very high measure of independence of mind and action”.

“Each judge must bust be independent both from external influences that may seek to reduce his or her objectivity and impartiality. This requires independence both from the other branches of government, and from any other influences that may affect the capacity of a judge to decide a case strictly on the basis of its legal merits,” Kirby said.

Kirby referred to a recent High Court of Australia case concerning whether the rule providing for immunity against civil actions for negligence on the part of advocates for court-related work was needed to maintain their independence, in which the Court decided that immunity would remain in place.

Kirby, the only dissenting judge in the case, took the view that professional immunity was not part of the Australian common law. He said different views therefore existed as to matters of detail, but that all agreed on the need to protect judicial and legal professional privilege. “Such independence is vital for the impartial and honest administration of justice and the courageous maintenance of the rule of law,” he said.

Kirby’s comments were reflected in a speech by Law Council of Australia president John North, who spoke at the LAWASIAdownunder2005 conference in the Gold Coast late March. “The executive and the judiciary have each been allocated separate powers with good government as their common objective,” North said.

The LCA president said the judiciary does have independence from executive interference, but added that the rule of law is something worth fighting for. Quoting Sir Gerard Brennan, North said “The rule of law is like the air we breath: so long as it is there — undiluted and freely flowing — we are not ordinarily conscious of its presence. But let the rule of law be polluted or impeded and we choke under the excesses of raw power”.

Malaysian Deputy Prime Minster Anwar Ibrahim also told the LAWASIAdownunder2005 conference that the “indiscriminate interplay” of law and politics could provide “dire” consequences. He claimed that the judiciary needed to take an active role in securing its own independence, and that too little judicial activism may lead to the executive imposing its will on, or “emasculating” the judiciary.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

High Court judge calls for independence
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
NT Law Society sounds alarm on mandatory sentencing
The Law Society Northern Territory has issued a warning over mandatory sentencing, saying it hasn’...
Aug 22 2017
Professionals unite in support of marriage equality
The presidents of representative bodies for solicitors, barristers and doctors in NSW have come toge...
Aug 21 2017
Is your firm on the right track for gig economy gains?
Promoted by Crowd & Co. The way we do business, where we work, how we engage with workers, ev...
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...