Ian Callinan
Encyclopedia
Ian David Francis Callinan, AC
, QC
(born 1 September 1937) is a former Justice of the High Court of Australia
, the highest court in the Australian court hierarchy
.
, he was raised in Brisbane
, Queensland
, and educated at Brisbane Grammar School
. He received a Bachelor of Laws (LLB) from the University of Queensland
while working as an articled clerk
. On 23 July 2010, the University of Queensland awarded him a Doctorate of Laws (honoris causa) (LLD hon causa) in recognition of his service to the law and the arts.
in 1960 and a barrister in 1965. He was appointed as a Queen's Counsel
(QC) in 1978. He was President of the Queensland Bar Association between 1984 and 1987 and President of the Australian Bar Association between 1984 and 1985.
At the Bar he developed a broad national practice, appearing in cases concerning almost all areas of the law including high profile commercial law cases, industrial relations disputes, defamation trials, constitutional cases and criminal matters. He was briefed by the Commonwealth Director of Public Prosecutions to prosecute a sitting High Court justice Lionel Murphy
, to appear in extradition proceedings against fugitive businessman Christopher Skase
in both Spanish and Australian courts, and to prosecute the first "bottom of the harbour" tax fraud case, which was appealed to the High Court of Australia.
He also appeared for high profile corporate and sporting personalities such as Alan Bond
, Greg Chappell
and Andrew Ettingshausen
. While at the Bar he held retainers from some of Australia's largest banks and media companies.
He advised the then Deputy Premier of Queensland, Bill Gunn to establish an inquiry into police corruption following the broadcast on the Australian Broadcasting Corporation
's (ABC) Four Corners program of a report entitled "The Moonlight State" which detailed extensive police corrpution. He subsequently appeared for the Queensland Government in the Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, more usually known as the Fitzgerald Inquiry
.
Callinan was particularly noted for his work in defamation cases. He successfully defended what was then the longest civil jury trial in Australian legal history, when he appeared as leading counsel for Channel 9 in a 13 week defamation trial, in which Sir Leslie Thiess sought damages from Channel 9 following a report broadcast on that network that he had bribed the Premier of Queensland, Joh Bjelke-Petersen
.
.
He is considered a strong defender of federalism
. His judgments show a willingness to innovate in common law areas (for example in, tort
and contract
law cases), but a strong reluctance to depart from the original intent of the Constitution.
In constitutional cases Callinan expressed a clear preference for a restrained interpretation of the Constitution and for significant developments to be by way of referendum rather than judicial decision. That view was most trenchantly expressed in his lengthy dissent in New South Wales v Commonwealth of Australia, a case concerned with the constitutional validity of the Howard Government
's WorkChoices
legislation. Callinan's judgment in that case is the longest in the history of the High Court, containing approximately 55,000 words and running for 165 pages.
Consistent with his restrained approach to constitutional interpretation and preference for democratic participation in constitutional alteration, Callinan expressed dissatisfaction with the High Court's implied rights jurisprudence and, in particular, the Court's decision in Lange v Australian Broadcasting Corporation
[1997] HCA 25, which confirmed an implied constitutional right to political communication. In Coleman v Power
Callinan cast down on the constitutional foundation for the Lange implication, but did not need to decide whether it was correct in order to decide the case.
He has called for debate on a tort of interference with privacy in his judicial and extra-judicial writing. That call was first made in his reasons for judgment in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 635.
He set out his own views on how the law should respond to 'rights of privacy' in an article published in the Oxford University Commonwealth Law Journal
in 2007 entitled "Privacy, Confidence, Celebrity and Spectacle", in which he called for the development of a tort of privacy and indicated a preference for tortious protection of privacy and image rather than the expansion of the equitable doctrine of breach of confidence.
While on the High Court he spoke out against the death penalty (which has been abolished in Australia), most notably in a speech to the 2005 Law Asia conference.
Callinan was described by Justice Susan Kenny of the Federal Court of Australia in article published in 2003 as 'the leading' exponant of the 'prudential ethical' method of constitutional adjudication during the 2002 term. Justice Kenny defined the 'prudential ethical mode' as 'a constitutional argument that relies on economic, social or political considerations attending the case ... a self-consciously evaluative style'.
Callinan's broader legal philosophy was considered by Professor Michael Bryant in a 2008 article published in the University of Queensland Law Journal
. Bryant concluded that that in his judgments on private law, Callinan 'showed a strong preference for achieving corrective justice, and a corresponding reluctance to take into account arguments based on considerations of distributive justice ... based on clearly held and expressed views on the proper limits of the appellate judicial role'.
Since leaving the High Court bench, Callinan has been appointed to arbitrate and mediate many disputes, including arbitrating claims by customers of the Commonwealth Bank arising out of the collapse of Storm Financial, mediating a dispute between a rebel Catholic parish and the Archbishop of Brisbane, mediating sexual assault claims involving the Catholic diocese of Toowoomba and acting as global mediator of claims arising out of the collapse of the Westpoint Corporation
.
and a trustee of the Brisbane Community Arts Centre and the Brisbane Civic Art Gallery Trust. He is currently a member of the Council of the National Gallery of Australia
.
Apart from his judicial writings he is a novelist (The Lawyer and the Libertine, The Missing Masterpiece, The Coroners' Conscience, Appointment at Amalfi, After the Monsoon and The Russian Master) and a playwright (Brazilian Blue, The Cellophane Ceiling, The Acquisition and A Hero's Funeral). He has also written short stories.
He served on the board of several public companies before being appointed to the bench and was also a board member of the Australian Broadcasting Corporation
, Australia's public broadcaster.
Between 2000 and 2008 he was the Chairman of the Australian Defence Force Academy
, Australia's preeminent higher education institution for Navy midshipmen and Army and Air Force officer cadets.
Pages on Hon. IDF Callinan AC:
Order of Australia
The Order of Australia is an order of chivalry established on 14 February 1975 by Elizabeth II, Queen of Australia, "for the purpose of according recognition to Australian citizens and other persons for achievement or for meritorious service"...
, QC
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
(born 1 September 1937) is a former Justice of the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
, the highest court in the Australian court hierarchy
Australian court hierarchy
There are two streams within the hierarchy of Australian courts, the federal stream and the state and territory stream. While the federal courts and the court systems in each state and territory are separate, the High Court of Australia remains the ultimate court of appeal for the Australian...
.
Education
Born in Casino, New South WalesCasino, New South Wales
Casino is a town in the Northern Rivers area of New South Wales, Australia, with a population of 9,400 people . It lies on the banks of the Richmond River and is situated at the junction of the Bruxner Highway and the Summerland Way....
, he was raised in Brisbane
Brisbane
Brisbane is the capital and most populous city in the Australian state of Queensland and the third most populous city in Australia. Brisbane's metropolitan area has a population of over 2 million, and the South East Queensland urban conurbation, centred around Brisbane, encompasses a population of...
, Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
, and educated at Brisbane Grammar School
Brisbane Grammar School
Brisbane Grammar School is an independent, non-denominational, day and boarding school for boys, located in Spring Hill, an inner suburb of Brisbane, Queensland, Australia...
. He received a Bachelor of Laws (LLB) from the University of Queensland
University of Queensland
The University of Queensland, also known as UQ, is a public university located in state of Queensland, Australia. Founded in 1909, it is the oldest and largest university in Queensland and the fifth oldest in the nation...
while working as an articled clerk
Articled clerk
An articled clerk, also known as an articling student, is an apprentice in a professional firm in Commonwealth countries. Generally the term arises in the accountancy profession and in the legal profession. The articled clerk signs a contract, known as "articles of clerkship", committing to a...
. On 23 July 2010, the University of Queensland awarded him a Doctorate of Laws (honoris causa) (LLD hon causa) in recognition of his service to the law and the arts.
Pre-judicial career
Callinan was admitted as a solicitor of the Supreme Court of QueenslandSupreme Court of Queensland
The Supreme Court of Queensland, which is based at the Law Courts Complex, is the superior court for the Australian State of Queensland and sits around the middle of the Australian court hierarchy...
in 1960 and a barrister in 1965. He was appointed as a Queen's Counsel
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
(QC) in 1978. He was President of the Queensland Bar Association between 1984 and 1987 and President of the Australian Bar Association between 1984 and 1985.
At the Bar he developed a broad national practice, appearing in cases concerning almost all areas of the law including high profile commercial law cases, industrial relations disputes, defamation trials, constitutional cases and criminal matters. He was briefed by the Commonwealth Director of Public Prosecutions to prosecute a sitting High Court justice Lionel Murphy
Lionel Murphy
Lionel Keith Murphy, QC was an Australian politician and jurist who served as Attorney-General in the government of Gough Whitlam and as a Justice of the High Court of Australia from 1975 until his death.- Personal life :...
, to appear in extradition proceedings against fugitive businessman Christopher Skase
Christopher Skase
Christopher Charles Skase was an Australian businessman who later became one of his country's most wanted fugitives, after his business empire crashed spectacularly and he fled to Majorca in Spain.-Early life:...
in both Spanish and Australian courts, and to prosecute the first "bottom of the harbour" tax fraud case, which was appealed to the High Court of Australia.
He also appeared for high profile corporate and sporting personalities such as Alan Bond
Alan Bond (businessman)
Alan Bond is an Australian businessman noted for his criminal convictions and high-profile business dealings, including what was at the time the biggest corporate collapse in Australian history. Bond was born in the Hammersmith district of London, England, and emigrated to Australia with his...
, Greg Chappell
Greg Chappell
Gregory Stephen Chappell MBE is a former cricketer who captained Australia between 1975 and 1977 and then joined the breakaway World Series Cricket organisation, before returning to the Australian captaincy in 1979, a position he held until his retirement 1983...
and Andrew Ettingshausen
Andrew Ettingshausen
Andrew Ettingshausen is an Australian former rugby league footballer of the 1980s, 1990s and early 2000s. He played his first grade Australian club football for the Cronulla-Sutherland Sharks, retiring with the record of most games at a single club, with 328...
. While at the Bar he held retainers from some of Australia's largest banks and media companies.
He advised the then Deputy Premier of Queensland, Bill Gunn to establish an inquiry into police corruption following the broadcast on the Australian Broadcasting Corporation
Australian Broadcasting Corporation
The Australian Broadcasting Corporation, commonly referred to as "the ABC" , is Australia's national public broadcaster...
's (ABC) Four Corners program of a report entitled "The Moonlight State" which detailed extensive police corrpution. He subsequently appeared for the Queensland Government in the Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, more usually known as the Fitzgerald Inquiry
Fitzgerald Inquiry
The Fitzgerald Inquiry into Queensland Police corruption was a judicial inquiry presided over by Tony Fitzgerald QC. The inquiry resulted in the deposition of a premier, two by-elections, the jailing of three former ministers and a police commissioner who was jailed and lost his...
.
Callinan was particularly noted for his work in defamation cases. He successfully defended what was then the longest civil jury trial in Australian legal history, when he appeared as leading counsel for Channel 9 in a 13 week defamation trial, in which Sir Leslie Thiess sought damages from Channel 9 following a report broadcast on that network that he had bribed the Premier of Queensland, Joh Bjelke-Petersen
Joh Bjelke-Petersen
Sir Johannes "Joh" Bjelke-Petersen, KCMG , was an Australian politician. He was the longest-serving and longest-lived Premier of Queensland, holding office from 1968 to 1987, a period that saw considerable economic development in the state...
.
Judicial activity
He was appointed as a Justice of the High Court in February 1998. He remained a Justice of the High Court until 1 September 2007, when forced to retire under constitutional provisions. He was replaced by fellow Queenslander Susan KiefelSusan Kiefel
Susan Mary Kiefel AC is a Justice of the High Court of Australia, the highest court in the Australian court hierarchy.- Early life and education :...
.
He is considered a strong defender of federalism
Federalism in Australia
On 1 January 1901 the Australian nation emerged as a federation. The model of Australian federalism adheres closely to the original model of the United States of America.- Federal features in the Australian Constitution :...
. His judgments show a willingness to innovate in common law areas (for example in, tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
and contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
law cases), but a strong reluctance to depart from the original intent of the Constitution.
In constitutional cases Callinan expressed a clear preference for a restrained interpretation of the Constitution and for significant developments to be by way of referendum rather than judicial decision. That view was most trenchantly expressed in his lengthy dissent in New South Wales v Commonwealth of Australia, a case concerned with the constitutional validity of the Howard Government
Howard Government
The Howard Government refers to the federal Executive Government of Australia led by Prime Minister John Howard. It was made up of members of the Liberal–National Coalition, which won a majority of seats in the Australian House of Representatives at four successive elections. The Howard Government...
's WorkChoices
WorkChoices
The Workplace Relations Act 1996, as amended by the Workplace Relations Amendment Act 2005, popularly known as Work Choices, was a Legislative Act of the Australian Parliament that came into effect in March 2006 which involved many controversial amendments to the Workplace Relations Act 1996, the...
legislation. Callinan's judgment in that case is the longest in the history of the High Court, containing approximately 55,000 words and running for 165 pages.
| There is nothing in the text or the structure of the Constitution to suggest that the Commonwealth's powers should be enlarged, by successive decisions of this Court, so that the Parliament of each State is progressively reduced until it becomes no more than an impotent debating society. This Court too is a creature of the Constitution. Its powers are defined in Ch III, and legislation made under it. The Court goes beyond power if it reshapes the federation. By doing that it also subverts the sacred and exclusive role of the people to do so under s 128. |
| — Justice Ian Callinan AC in NSW v Commonwealth (2006) 229 CLR 1. |
Consistent with his restrained approach to constitutional interpretation and preference for democratic participation in constitutional alteration, Callinan expressed dissatisfaction with the High Court's implied rights jurisprudence and, in particular, the Court's decision in Lange v Australian Broadcasting Corporation
Lange v Australian Broadcasting Corporation
Lange v Australian Broadcasting Corporation 189 CLR 520 is a High Court of Australia case that deals with the implied freedom of political communication in the Australian Constitution.-Background:...
[1997] HCA 25, which confirmed an implied constitutional right to political communication. In Coleman v Power
Coleman v Power
Coleman v Power 220 CLR 1 is a High Court of Australia case that deals with the implied right to freedom of political communication found in the Australian Constitution.- Background :...
Callinan cast down on the constitutional foundation for the Lange implication, but did not need to decide whether it was correct in order to decide the case.
He has called for debate on a tort of interference with privacy in his judicial and extra-judicial writing. That call was first made in his reasons for judgment in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 635.
| It seems to me that, having regard to current conditions in this country, and developments of the law in other common law jurisdictions, the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country, or whether the legislatures should be left to determine whether provisions for a remedy for it should be made. |
| — Justice Ian Callinan AC in ABC v Lenah Game Meats (2001) 208 CLR 199 at 335. |
He set out his own views on how the law should respond to 'rights of privacy' in an article published in the Oxford University Commonwealth Law Journal
Oxford University Commonwealth Law Journal
The Oxford University Commonwealth Law Journal is a postgraduate-edited international and comparative law journal from the University of Oxford Faculty of Law, covering the study of legal trends and developments within and between Commonwealth jurisdictions.-Content:The journal includes articles,...
in 2007 entitled "Privacy, Confidence, Celebrity and Spectacle", in which he called for the development of a tort of privacy and indicated a preference for tortious protection of privacy and image rather than the expansion of the equitable doctrine of breach of confidence.
While on the High Court he spoke out against the death penalty (which has been abolished in Australia), most notably in a speech to the 2005 Law Asia conference.
| The criminal justice system is fallible. Mistakes occur. Any system that retains the death penalty will inevitably, even if infrequently, cause an innocent person to die. It is not within our capability to avoid the possibility of error. In my experience, the phenomenon of human fallibility is irrefutable, and, in my view, must be accorded primacy when weighing the arguments in favour of, and against, the death penalty ... There does seem to be little empirical data to suggest that the death penalty is a greater deterrent than imprisonment for life without parole. The fallibility of the criminal justice system, the inability to prove the deterrence theory, and my personal revulsion of state sponsored execution of human beings support the abolition of capital punishment. |
| — Justice Ian Callinan AC in "Capital Punishment", speech to the 2005 LAWASIA Conference (22 March 2005). |
Callinan was described by Justice Susan Kenny of the Federal Court of Australia in article published in 2003 as 'the leading' exponant of the 'prudential ethical' method of constitutional adjudication during the 2002 term. Justice Kenny defined the 'prudential ethical mode' as 'a constitutional argument that relies on economic, social or political considerations attending the case ... a self-consciously evaluative style'.
Callinan's broader legal philosophy was considered by Professor Michael Bryant in a 2008 article published in the University of Queensland Law Journal
University of Queensland Law Journal
The University of Queensland Law Journal is an Australian double-blind peer-reviewed law journal. It was established in 1948 and is published twice yearly....
. Bryant concluded that that in his judgments on private law, Callinan 'showed a strong preference for achieving corrective justice, and a corresponding reluctance to take into account arguments based on considerations of distributive justice ... based on clearly held and expressed views on the proper limits of the appellate judicial role'.
Post-judicial activities
Immediately upon his retirement from the High Court he was called back into public service through his appointment to conduct a Commission of Inquiry into the outbreak of equine influenza in Australia. His report was handed down in April 2008. On 12 June 2008 the Commonwealth Government responded to the report, accepting all 38 of its recommendations and putting in place an implementation program.Since leaving the High Court bench, Callinan has been appointed to arbitrate and mediate many disputes, including arbitrating claims by customers of the Commonwealth Bank arising out of the collapse of Storm Financial, mediating a dispute between a rebel Catholic parish and the Archbishop of Brisbane, mediating sexual assault claims involving the Catholic diocese of Toowoomba and acting as global mediator of claims arising out of the collapse of the Westpoint Corporation
Westpoint Corporation
Westpoint Corporation Pty Ltd was the head company of the Western Australian based Westpoint Group of Companies which was primarily engaged in property development and raising finance for that purpose. Receivers and managers were appointed on 2 February 2006. Prior to the collapse the corporation...
.
Other activities
While at the Bar Callinan devoted much time to supporting the Arts in Queensland. He served on the board of many art galleries and was Chairman of Trustees of the Queensland Art GalleryQueensland Art Gallery
The Queensland Art Gallery is part of the Queensland Cultural Centre, and is located nearest to Brisbane River at South Bank...
and a trustee of the Brisbane Community Arts Centre and the Brisbane Civic Art Gallery Trust. He is currently a member of the Council of the National Gallery of Australia
National Gallery of Australia
The National Gallery of Australia is the national art gallery of Australia, holding more than 120,000 works of art. It was established in 1967 by the Australian government as a national public art gallery.- Establishment :...
.
Apart from his judicial writings he is a novelist (The Lawyer and the Libertine, The Missing Masterpiece, The Coroners' Conscience, Appointment at Amalfi, After the Monsoon and The Russian Master) and a playwright (Brazilian Blue, The Cellophane Ceiling, The Acquisition and A Hero's Funeral). He has also written short stories.
He served on the board of several public companies before being appointed to the bench and was also a board member of the Australian Broadcasting Corporation
Australian Broadcasting Corporation
The Australian Broadcasting Corporation, commonly referred to as "the ABC" , is Australia's national public broadcaster...
, Australia's public broadcaster.
Between 2000 and 2008 he was the Chairman of the Australian Defence Force Academy
Australian Defence Force Academy
The Australian Defence Force Academy is a tri-service military Academy that provides military and tertiary academic education for junior officers of the Australian Defence Force in the Royal Australian Navy , Australian Army and Royal Australian Air Force .Tertiary education is provided by the...
, Australia's preeminent higher education institution for Navy midshipmen and Army and Air Force officer cadets.
Controversy
Shortly after his appointment to the High Court, advice given by Callinan while he was at the Bar became the subject of a major Federal Court case, in which it was found that the advice given by Callinan resulted in proceedings being filed that were an abuse of the Court's process. Callinan was not a party to the proceeding, but was called as a witness. The trial judge (Goldberg J) made adverse findings against both Callinan's instructing solicitors (who were the defendants to the proceeding) and Callinan (who was not).Honours
- He received Australia's highest civil honour when he was made a Companion of the Order of AustraliaOrder of AustraliaThe Order of Australia is an order of chivalry established on 14 February 1975 by Elizabeth II, Queen of Australia, "for the purpose of according recognition to Australian citizens and other persons for achievement or for meritorious service"...
(AC) in 2003 for his services to the law, arts and the community. - He received the Centenary Medal in 2001 for his service as a Justice of the High Court of Australia.
- He is a life member of the Queensland Bar Association and of the Australian Bar Association.
- He is an Hon. Fellow of the Institute of Arbitrators & Mediators in Australia.
External links
Supreme Court of Queensland Library - History of the Queensland BarPages on Hon. IDF Callinan AC:
- Justice Callinan's career at the Queensland Bar: http://www.sclqld.org.au/schp/exhibitions/qldbar/notable/text7.htm;
- Justice Callinan's involvement in sport and the arts while at the Bar:http://www.sclqld.org.au/schp/exhibitions/qldbar/notable/text8.htm.