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Justice Ian Callinan.

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Robert McClelland MP

Shadow Attorney-General

Federal Member for Barton





The Government should establish an independent inquiry into the conduct of current High Court Justice Ian Callinan, according to the Shadow Att orney-General, Robert McClelland.


Mr McClelland’s comments follow the handing down of the decision of the Full Court of the Federal Court of Australia dismissing the appeal brought by Messrs. Flower and Hart against the judgment of Justice Goldberg. Justice Goldberg found that Justice Callinan, in his prior occupation as a barrister, had engaged in improper conduct.


“The Australian Labor Party regards the findings against Justice Callinan as extremely serious,” Mr McClelland said. “The dismissal of this appeal raises again the question as to whether Justice Callinan’s conduct is sufficient to constitute “proved misbehaviour” under section 72(ii) of the Constitution.


“My preferred approach is for this matter to be referred to a panel of at least 3 independent retired or current senior judges who can advise the Parliament as to what action, if any, should be taken in relation to Justice Callinan.


“The Attorney’s previous decision to dismiss the Law Council of Australia’s proposal for a parliamentary inquiry was inappropriately made and poorly decided,” Mr McClelland said.


“The Attorney has a conflict of interest in relation to this matter because he appointed Justice Callinan. In appointing him, the Attorney had to reach the conclusion that Justice Callinan was a fit and proper person to hold judicial office. Any consideration of this matter inevitably leads to questions as to whether the Attorney knew or ought to have known of the conduct of Justice Callinan that Justice Goldberg found to be improper. If the Attorney did, then his conduct in appointing Justice Callinan comes into question.


“The Attorney-General previously rejected such an independent review on the basis that there are a wide range of views among constitutional experts as to what ‘proved misbehaviour’ means. But this is not an excuse for failing to determine whether Justice Callinan has breached that standard. If anything, it is a reason why this matter should be considered by a panel of senior former or current judges.


“For so long as there continue to be reasonably based doubts as to whether Justice Callinan should continue to sit on the High Court, the public’s confidence in that institution will be undermined,” Mr McClelland said.


“More broadly, it is also vital that the Government and Parliament consider the appropriate procedures that should be adopted in future cases where impropriety is alleged to have been committed by a judge. The process so far has demonstrated that the political process is not the ideal mechanism for determining these issues.


“Any consideration would, of course, have to confront the fact that section 72(ii) of the Constitution ultimately leaves such an issue for the Parliament to decide. However, that does not mean that the Parliament cannot seek the views of independent and impartial experts in the manner I have suggested.


“In conclusion, I call upon the Attorney to do the honourable thing and to establish an independent inquiry into Justice Callinan’s conduct. He should also refer the issue of the best way to deal with future allegations of impropriety by judges to either an independent expert body, such as the Australian Law Reform Commission, or to a suitably constituted Parliamentary Committee.


“If the Attorney fails to act then the Australian people will be entitled to draw the conclusion that once again the Howard Government has acted to protect someone who has had a long and public association with the Coalition, just as it is doing with Mr Entsch. Such a perception should not be allowed to arise. Public confidence in our political and judicial system demands no less.”


11 June 1999


Contact: Simon Banks Ph: (02) 6277 4323 or 0419 638 587


cm  1999-06-16  09:49