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Government lawyers should discourage clients from political gain
While navigating the complexities of public interest immunity claims, lawyers for public servants and ministers should beware of their client’s enthusiasm to use the courts – and public attention – for their own political advantage, Bret Walker SC has cautioned.
Naomi Neilson
Lawyers, but particularly government lawyers, should not be surprised with the “curled lips” of outsiders that regard them as “dogs of authoritarianism” if they are not prepared to play a role in preventing serious criminal offences involving leaks and political gains.
This activity should “never, ever waive against the doctrinally compulsory requirement” that PII be observed and cabinet secrecy be regarded as a red alert zone for lawyers.
“We must do everything to discourage people from that kind of activity, we must refuse to participate in it and if that calls for us to mightily offend our lords and masters in the government hierarchy, so be it. That’s what you should do,” Mr Walker said.
Mr Walker warned that secrecy, whether imposed by a statute or common law, should not lend itself to partisan decision-making or manipulation. The very nature of national security and PII claims “is not capable of being expressed in party terms”.
Government lawyers should also be cautious about their role in the courtroom and be aware that they are “not there to win in the same way defence counsel is there to win”. Having this attitude while approaching national security trials and navigating potential PII claims could have a detrimental impact on the case and the right to a fair trial.
“The system poses the fair – firm but fair – prosecutors against the legal and engaged defence counsel as means by which our system of dialectic procedures in how accusatory systems [operate],” Mr Walker said. “We don’t have time for resources for an unending search for the truth. It’s for those reasons that notions of the prosecution holding back something which could assist the defence [should] otherwise be classically disclosed.”
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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