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.