Corruption case comes back to haunt judge

By Greg Ansley

The Australian Government has drawn the wagons around a conservative High Court judge found to have been part of a case over a decade ago involving serious professional misconduct.

Justice Ian Callinan, appointed to the nation's highest court in 1997 in the hope of muting what the Government considered a rising tide of judicial activism, now faces the prospect of a Senate inquiry that could ultimately topple him from the seven-member Bench.

But in a determined bid to repel what it regards as a political vendetta by Labour, the Government has emphatically rejected an inquiry as unwarranted and likely to damage judicial independence, the standing of the courts, and the judge himself.

In the middle is Justice Callinan, a distinguished former Queensland barrister and powerbroker with conservative leanings and a track record of controversy that has grown even louder since he began sitting on the High Court in February 1998.

He joined a Bench that was already under sustained attack for constitutional decisions and fighting back with strong public statements about political interference in the judicial process.

The Government had criticised it bitterly for the Mabo and Wik decisions that recognised prior Aboriginal occupation of Australia and laid the legal framework for the limited return of land to its traditional owners, in the process sparking a political crisis that took the country to the brink of a race-based election.

In March, Chief Justice Murray Gleeson warned the court's political attackers that their actions would inevitably "frustrate ambitions, curtail power, invalidate legislation and fetter administrative actions."

Earlier, fellow High Court judge Justice Michael Kirby had blasted personal attacks on the court and "common name-calling" and said any loss of judicial independence would leave only "the power of guns or money or of populist leaders or of any other self-interested groups."

The appointment of Justice Callinan simply renewed the fire.

Shortly after he joined the court in a buzz of controversy, the full Bench sat to determine whether a bridge should be allowed to be built from the mainland of South Australia to Hindmarsh Island, at the mouth of the Murray River.

The bridge had been blocked by the previous Labour Government after claims that it would be built on land sacred to local Aborigines as a site for "secret women's business."

Opponents demanded Justice Callinan disqualify himself from the case because he had acted as an adviser to the now-conservative Government, which supported the bridge proposal.

The judge said he had prepared advice only for a Senate inquiry and was therefore eligible to sit on the case - but resigned from the hearing shortly afterwards when his own correspondence revealed that his advice "was not a submission to the Senate, but an opinion to the responsible minister."

Later he was the only dissenter to the full Bench finding ordering Patrick Stevedores to reinstate 1400 sacked waterside workers in the dock strike that paralysed the nation's trade last year.

But the roots of Labour anger, and of his present difficulties, lie much further back. In 1985, he won a conviction against Gough Whitlam's Attorney-General, Lionel Murphy, later a High Court judge, for attempting to pervert the course of justice. Although later overturned on appeal, it was a case that earned enduring Labour animosity.

A year later Justice Callinan, then a QC, joined Flower and Hart, the lawyers for property developer George Herscu, in an action designed to avoid liability for millions of dollars Herscu owed to building contractor White Industries. Herscu was later jailed for corruption.

A writ alleging fraud by White as a "temporary bargaining stance" was drafted by Callinan and later emerged in damaging documents obtained by White's lawyers and used as the basis for an action claiming costs on the grounds that they had abused the court process.

Federal Court Justice Alan Goldberg agreed in a finding last year, in which he described the Herscu action as "an abuse of process from its inception because of the illegitimate purpose for which the proceeding was instituted."

Justice Goldberg added: "I am satisfied that Mr Callinan was privy to that purpose and at least acquiesced in it and approved of it."

Last week, a hearing by three Federal Court judges dismissed an appeal by Flower and Hart, opening the way for a renewed onslaught by Labour and the Democrats, who will decide next week on a possible Senate inquiry.

Backing them is an earlier call for a parliamentary inquiry by the Law Council of Australia, which spelled out the council's fears for the reputation of the High Court and the administration of the justice system.

The council wanted the inquiry to determine Justice Callinan's involvement in the Herscu case under section 72 of the constitution, under which a High Court judge may be removed for "proved misbehaviour or incapacity" by a joint sitting of both Houses of Parliament.

But Prime Minister John Howard said the Government would vote against an inquiry. "We see it as nothing other than a bit of a political vendetta by the Labour Party against a man who was involved as a lawyer, as he is obliged to do through the ethics of his profession, in cases involving Labour luminaries."