Speech to the Bench and Bar Dinner

Bench and Bar Dinner – Hobart

Speech by the Honourable Chief Justice Peter Underwood AO
31 March 2007

Your Excellency, Mrs Cox, Mr President and Mrs Estcourt, Justice Callinan, and colleagues in the practice of the law. On behalf of the Tasmanian judiciary I congratulate the Tasmanian independent bar on this dinner tonight, which, so far as I am aware, is the first Bench and Bar dinner to be held in this State. It marks the coming of age of a fledging organisation that began its life about 20 years ago with two or three practitioners who chose to practice exclusively as barristers. Things have changed greatly since then. The Tasmanian independent bar now has 34 members, is a constituent body of the Australian Bar Association and will have statutory recognition as a professional organisation in the new Legal Profession Act when it is passed by Parliament.

I offer my congratulations to the Tasmanian independent bar, not because it turns on a pretty good dinner, but because tonight is an affirmation of those values that underpin the practice of a barrister at an independent bar. That is a practice that owes a duty first to the court, second to the client and third to the general public. Just before I was admitted to practice Sir Frank Kitto remarked that the Bar is no ordinary profession or occupation and went on to say that:[1]

“These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client’s confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations.”

A strong independent bar is made up of barristers who are guided by those obligations, barristers who work without fear of reprisal advancing their clients’ cause and barristers who give the courts assistance in accordance with their duty to uphold the law. It is fitting that the coming of age of the independent bar in Tasmania is marked by a dinner with judges and magistrates for the barrister’s practice of the law is indeed, “a relationship of intimate collaboration with the judges.” I also see tonight as an affirmation by a group of Tasmanian legal practitioners that they will continue to subscribe to those values, practice in accordance with those principles and uphold the rule of law.

It is accepted by right thinking men and women that an independent judiciary is essential to a society that is governed by the rule of law. As Spigelman CJ said:[2]

“Our society cannot be governed by the rule of the law without an institutionalised arrangement for the independence of the judiciary. Furthermore, democracy depends on the courts enforcing what the Parliament intended, not what the Executive wants.”

Although Mr Chris Merritt and others who work for the media may not believe it, judicial independence is, as the Chief Justice observed, not just a perk for judges, but a “fundamental right of citizens” as a shield against the excesses of power. So it is appropriate at this gathering of judicial officers and barristers to remind ourselves that the independence of the judiciary is dependent upon the independence of the bar. Heydon J recently wrote an article about what he described as:[3]

“… the dependence of the rule of law on an independent judiciary and a legal profession, [he said that] the rule of law [is] less vulnerable where an independent bar exists. The common law trial is the ultimate vindication of justice and it relies upon the interplay between the bench and the bar.”

Accordingly, this evening I offer congratulations to the Tasmanian independent bar for achieving this important milestone. When I began to speak a few moments ago I offered those congratulations on behalf of the Tasmanian judiciary, but were it aware of the importance of this occasion I think I might have been emboldened to offer congratulations on behalf of all Tasmanians for this milestone has significance for every one who lives in, or does business in, this State. I cannot express those congratulations better than by adopting the following words of a former Chief Justice of Australia:[4]

“The independence of the Bar is as valuable to the client as it is to the public welfare. To the client, it gives an assurance of such accuracy as knowledge and skill can contribute; to the community, it gives the service of applying the law in the manner in which the law is intended to act. It is independence that makes the barrister essential to the administration of justice according to law. Independence that cannot be bought in a market; independence that will not be bartered for money, or for privilege, status or favour or even for a momentary success. This is the characteristic that, more than any other, stamps the Bar as a profession and not a service industry.”

[1] Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, at 297-8.

[2] Spigelman CJ, Opening of law term dinner, 29 January 2007.

[3] J D Heydon J “Reciprocal Duties of Bench and Bar.” (2007) ALJR 23.

[4] Hon Sir Gerard Brennan AC KBE, “Profession or Service Industry: The Choice” Australian Bar Association, San Francisco 18 August 1996