Last week a full Federal Court dismissed an appeal from a single-judge decision which made inferences of improper conduct of High Court judge Justice Ian Callinan 10 years ago when he was a barrister. In doing so the full court found that the inferences against the judge were irrelevant to the issue at hand, but did not overturn or in any way impugn the original inferences.
The question now remains whether there should be some sort of inquiry about Justice Callinan’s conduct with a view to determining whether he should remain on the bench.
Politics will be the main determinant of those questions, not the merits of the case. The reason is that the appointment of Justice Callinan was enmeshed in political controversy. It came at a time when the High Court was under fire from politicians on the conservative side of politics over its decisions in the two leading native-title cases, the first was the Mabo case which found that native title existed in Australia and the second was the Wik case. Among the attacks was a call by the Deputy Prime Minister, Time Fischer, for the appointment of what he called a capital C conservative to the High Court Bench. Shortly thereafter, the Government appointed Mr Callinan, QC. Mr Callinan was known for being a conservative. He is seen therefore, rightly or wrongly, as a conservative appointment and someone of similar philosophic view as the Coalition Government. The chances, then, of any impartiality in decisions on whether to launch and inquiry or what to do with the results of the inquiry will be reduced. A split along party lines will be almost inevitable.
It is likely that the Senate, in which the Coalition does not have a majority, will set up an inquiry. It is likely that whatever results from that inquiry will not result in the House of Representatives voting for removal.
The Constitution says that a judge of the High Court “”shall not be removed except by the Governor-General in Council on address from both Houses of Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity”.
The provision is gravely flawed, especially if a judge is seen to be a political appointment. It means that decisions to inquire or to remove or not remove are likely to be influenced by political motivation rather than the merits.
It would be better to have an independent body to look into judicial behaviour and to make findings about misbehaviour or incapacity. Ultimately, Parliament would have to do the removal, but it would be a brave political party that ordered its MPs to ignore the findings of an independent body. As it is, the majority Coalition Members of the House of Representatives can easily dismiss any findings of a Senate inquiry which would have a majority of non-Coalition members.
It is similar to the situation of the late Justice Lionel Murphy.
It is another argument for governments of all kinds to avoid appointments to the court that can be seen to be political.
It is an argument for politicians not to make ill-informed attacks on courts. (Incidentally, Mr Fischer’s call for capital C conservatism was especially misplaced. It was precisely because some members of the court engaged in conservative legal thinking — following precedent and upholding common-law property rights — that the Wik claimants won.)
The constitutional provision has other problems. First, the constitution does not say how the misbehaviour or incapacity is to be proved, what level of proof is required, or what forum is the proof to be shown in.
Second, must the “”proved misbehaviour” occur while the judge is in office or can it relate to a former time, as in this instance.
Federal Court judge Alan Goldberg found that the then Mr Callinan instructed by Flower and Hart solicitors had advised a building contracting company to load on as many defences and legal points as possible to give it as much time as possible to forestall paying money owed knowing that the case was very, very weak if not hopeless. The Federal Court awarded large damages against Flower and Hart in favour of White Industries because the building contractor had eventually gone out of business. Justice Goldberg in effect said that the legal advice given had amounted to the obstruction of the administration of justice.
This conduct, of course, did not happen while Mr Callinan was a judge of the High Court.
The appeal judges, Justices Malcolm Lee, Donald Hill and Ross Sundberg, said that starting legal action with the aim of delaying or compromising a claim is an improper purpose. It was an abuse of process to bring proceedings not to vindicate a legal right but some other purpose. However, the appeal judges said that Justice Goldberg’s finding about Mr Callinan was not relevant to the question of whether the damages against the firm of solicitors should stand, but they did not overturn the finding. In that circumstance the finding stands. It is of sufficient seriousness that the Law Council of Australia said there should be an inquiry.
The Government is wrong to reject an inquiry. It would be better to clear the air. Also if the Government joined the process it would be seen to be non-partisan and the selection of those doing the inquiry would be more impartial.
The incidence goes beyond the question of Justice Callinan. There is community disquiet about the administration of justice. If there is a question of lawyers using delaying tactics to thwart or dilute claims, it should be aired, and the more so if it is a widespread practice. It is not an argument to say everyone does it, because if everyone does it, it indicates very poor performance by the legal system which is there to ensure justice not delay and clever tricks.