Richard Ackland discusses yet another appalling High Court decision in his SMH column this morning. It isn’t quite as breathtakingly repugnant as last year’s Al-Khateb decision where a strong numerical majority held that it was perfectly lawful for the federal government to hold asylum seekers in indefinite “administrative detention”, even where they remained in Australia through no fault of their own, but it’s bad enough.
In D’Orta-Ekenaike v Victoria Legal Aid (handed down yesterday), an even stronger majority with Kirby J the sole noble dissentient, opted not to re-open the existing 1988 authority of Giannarelli v Wraith, which had preserved barristers’ immunity from civil suit for negligence for actions taken during or immediately surrounding a civil or criminal trial.
As Ackland points out, Australia is just about the last part of the common law world to continue clinging to this archaic and self-serving (for lawyers) doctrine. The High Court doesn’t seem to have any problem upholding the right to sue doctors or dentists or accountants or engineers. But lawyers? Oh no no no! The justice system would grind to a halt if they were held to the same standards of accountability for their actions as every other profession.
So why hasn’t it ground to a halt in the US where the immunity from suit doesn’t exist? Or in Britain or New Zealand where the judges did have the guts to abolish it? Or in Canada where at least a single judge decision has also struck down the immunity?
I can’t actually think of much to add to Ackland’s excellent article, except a string of adjectives like disgraceful, arrogant, self-serving, cynical, obtuse, unaccountable and downright disgusting. It’s another one of those days when I’m ashamed to be a lawyer.
Actually, I can think of something to add. Why don’t the state and territory Labor governments band together and enact co-ordinated legislation to abolish lawyers’ immunity from suit? You wouldn’t hold your breath waiting for the Howard government to enact similar laws, but 90% or so of litigation takes place under state law anyway. It would put pressure on Howard, and would be bound to be highly popular with the electorate. Write to your local State or Territory MP today and demand it.