By David Fleming
Recent Government proposals targeting migration lawyers should concern every Australian lawyer, regardless of where they stand on immigration. The issue extends far beyond migration policy. It goes to the heart of the rule of law, the independence of the legal profession, and the constitutional principle that Government power must remain subject to scrutiny and challenge.
Governments are entitled to combat fraud. That goes without saying. No one supports fabricated evidence, false visa applications, or dishonest claims. Lawyers who engage in misconduct should face disciplinary action.
But that is not the principle now at stake.
The more troubling question is whether Governments should have the power to determine which cases lawyers should and should not be permitted to pursue. It goes against the Westminster principle of separation of powers.
At the heart of the legal system is a simple idea: people are entitled to seek advice and challenge Government decisions through lawful processes. Lawyers exist to help them exercise those rights.
When Governments begin labelling legal claims as “futile” and proposing restrictions on lawyers who pursue them, they risk undermining a fundamental safeguard of democracy – the independence of the judiciary.
The rule of law requires independent lawyers
Lawyers do not decide whether visa applications are granted. They do not make administrative decisions. Their role is to assist clients in navigating the legal system and testing the legality of Government action.
Many cases that ultimately fail are still legitimate cases to bring. Others appear weak at first but succeed when new evidence emerges or legal errors are identified.
If lawyers become reluctant to act because Government officials may later decide a claim was unlikely to succeed, access to justice is inevitably restricted.
The rule of law depends on lawyers being able to challenge Government decisions without fear of political pressure or regulatory retaliation.
A lawyer’s duty is not to guarantee success. It is to provide independent advice, advocate for the client within the law, and ensure that legal rights can be exercised. A system that discourages lawyers from bringing difficult cases inevitably discourages citizens from challenging the state.
Who decides what is hopeless?
The Government’s approach assumes there is a clear distinction between worthwhile claims and hopeless ones.
In reality, legal practice is rarely so simple.
Migration law is notoriously complex. Cases often involve disputed facts, language barriers, changing country conditions, family violence, trauma, mental health issues, or evolving legal principles.
What appears weak to a departmental decision-maker may look entirely different to a tribunal or court.
History is filled with cases initially dismissed as unlikely to succeed that eventually established important legal principles or exposed Government error.
Once Governments begin deciding which arguments lawyers should feel safe advancing, an important line has been crossed.
The danger lies in allowing the Executive Government to become the arbiter not only of visa applications, but also of the legitimacy of the legal challenges brought against its own decisions.
Today’s target is migration lawyers
The danger extends beyond immigration law.
If Governments can discourage lawyers from running migration cases regarded as weak, why stop there?
Could employment lawyers be criticised for pursuing difficult unfair dismissal claims?
Could criminal defence lawyers be condemned for defending clients against apparently overwhelming evidence?
Could public interest lawyers be discouraged from challenging controversial Government policies?
Legal representation cannot depend on the popularity of a client’s cause or the Government’s view of its merits.
Rights that are weakened for one group rarely remain confined to that group. Every encroachment upon professional independence establishes a precedent that may later be applied elsewhere.
The separation of powers matters
There is another reason for caution.
In migration cases, lawyers are often challenging Government decisions. The Government is not a neutral observer. It is frequently the opposing party.
That creates an obvious concern when Governments seek greater influence over the kinds of cases lawyers may pursue.
One of the foundations of a liberal democracy is the separation of powers. Parliament makes the law. The Executive Government administers it. Courts and tribunals interpret the law and determine disputes.
Lawyers occupy a critical position within that constitutional framework. They are not agents of the Government and are not expected to act only in cases the Government considers worthy. Their role is to ensure individuals can access independent courts and tribunals to test the legality of Government action.
If the Government is permitted to influence which cases lawyers are willing or able to bring, the distinction between the regulator and those who challenge regulatory decisions begins to blur.
The danger is not merely theoretical. Governments naturally prefer fewer legal challenges to their decisions. Legal challenges consume resources, expose administrative mistakes, and sometimes result in Government decisions being overturned. That is not a justification for discouraging litigation. It is precisely why an independent legal profession is necessary.
A legal system in which lawyers feel constrained by Government expectations is one in which executive power faces less scrutiny. Whenever scrutiny is reduced, the risk of error, unfairness and abuse increases.
Democracy depends not only on independent courts but also on independent lawyers willing to bring difficult cases before them.
Existing safeguards already exist
Australia already possesses extensive mechanisms to deal with unethical behaviour.
Lawyers can be disciplined for professional misconduct. Courts can penalise abuses of process. Fraud can be investigated and prosecuted. Professional regulators can sanction practitioners who breach their obligations.
The issue is therefore not whether wrongdoing should be punished. It should.
The concern is that genuine misconduct is being used to justify broader restrictions that may discourage legitimate legal advocacy.
Bad lawyers should be punished because of what they do, not because they represent unpopular clients or pursue difficult cases.
The answer to misconduct is enforcement of existing standards, not greater Government influence over legal practice.
A line worth defending
Reducing fraudulent claims is a legitimate objective.
Reducing the willingness of lawyers to challenge Government decisions is not.
The legal profession exists as an important counterbalance to executive power. Lawyers help ensure that Government decisions are not simply accepted because they come from Government. They ensure that those decisions can be questioned, tested and, where necessary, overturned by independent tribunals and courts.
The real danger is not that dishonest practitioners may be punished. Few would object to that. The danger is the suggestion that Government should have greater influence over determining which claims lawyers should feel safe pursuing.
Once Government acquires the ability to discourage legal challenges it considers inconvenient or unlikely to succeed, an important constitutional safeguard is weakened.
The separation of powers requires more than independent courts. It requires an independent legal profession willing to act against the Government when circumstances demand it.
That is not a loophole in the system.
It is one of the system’s most important protections.
