Editorial: A new low
A new low
On February 5 and 6, the High Court heard an appeal by the Ngarrindjeri women of South Australia arguing that the 1997 Hindmarsh Island Bridge Act, passed by federal parliament to enable the privately owned Hindmarsh Island Bridge to be built, is invalid because parliament cannot pass laws which discriminate against Aboriginal people. The act denies the traditional owners of Hindmarsh Island the right to seek protection of sacred sites that would be affected by the bridge.
The commonwealth's lawyers argued that Australia's constitution was always and still is rooted in racism and allows the government to make laws against Aborigines' interests.
Whether or not this is a true interpretation of the law, it is certainly true in practice. Just weeks before the hearing, the Howard government appointed Ian Callinan QC to fill the seventh spot on the High Court bench. Callinan is a hard core conservative and a vocal critic of the court's "judicial activism" in the Mabo case.
The Ngarrindjeri's lawyers asked Callinan to consider that there could be an "appearance of bias" if he was involved in the Hindmarsh bridge judgment and asked him to step down. He refused.
At a public hearing he called on February 4, Callinan elaborated on his already well-known political connections to the Coalition. He confirmed his close friendship with Liberal defence minister Ian McLachlan (who, in 1995, opened and copied the contents of envelopes marked as "secret women's business"), and defended his role as McLachlan's legal adviser throughout the twists and turns of the Coalition's campaign to assist the Hindmarsh Island bridge to go ahead.
Callinan also admits that Aboriginal affairs minister John Herron asked him to provide a "supportive" submission on the Hindmarsh Island Bridge Act.
That Callinan's appointment to the High Court was politically motivated is not in doubt. Neither is it surprising. The appointment to the courts of party-political allies has been standard operating procedure for both Labor and Liberal since federation.
What has surprised even conservative commentators is the blatancy with which Callinan is pursuing the Coalition's — and corporations' — agenda in this case.
In almost all previous situations of perceived bias, judges have stepped aside for all or part of the cases concerned, especially when a request for them to do so has been filed. On this basis, the Ngarrindjeri have now asked the full High Court to disqualify Callinan from ruling on their case. Even Howard's first High Court appointee, Kenneth Hayne, stood aside from a Western Mining constitutional case because he had, as a lawyer years earlier, signed a statement of claim for the company.
As the representatives and enforcers of a legal system stacked in favour of a tiny, wealthy elite, judges know that to maintain public confidence in the courts and laws, they must at least appear to be delivering impartial justice.
That Callinan will probably get away with this flagrant disregard for all people's right to a fair hearing in the courts is further evidence of the institutionalised racism in this country. Had the case concerned almost any issue other than indigenous land rights, the moral and political pressure on Callinan to stand aside would have been far greater.
One of Callinan's "justifications" for not standing aside was that it was important to get a result in this case (rather than the court being evenly divided). His participation will likely produce a 4-3 result against Aboriginal rights, which is significant not just for the Ngarrindjeri.
If the government wins this case, it will have the legal precedent to wind back the Aboriginal rights that the High Court recognised in the Wik decision. This was the purpose behind Callinan's appointment.