Strike leader's bid for magistrate to quit case

THE defence team for union boss Kevin Harkins will move to have a magistrate disqualified from hearing the case against their client after it emerged he had investigated the ALP candidate's activities during a royal commission.

THE defence team for union boss Kevin Harkins will move to have a magistrate disqualified from hearing the case against their client after it emerged he had investigated the ALP candidate's activities during a royal commission.

Magistrate Toni Luvec acted as counsel assisting the commissioner during the Cole royal commission hearings into corruption in the building and construction industries, a court heard yesterday.

The commission brought down an adverse finding against Mr Harkins, who allegedly engaged in "unlawful conduct" but did not face criminal charges as a result of the finding.

Mr Luvec had also acted for the Australian Building and Construction Commission -- the government body bringing the case against Mr Harkins -- during his career as a barrister, the Federal Magistrates Court was told yesterday.

As federal Opposition Leader Kevin Rudd continued to support the former union boss, who is accused of organising an illegal strike, Mr Harkins's lawyer, Herman Borenstein SC, told the court an application would be made to have Mr Luvec disqualified from hearing the case on the grounds of bias.

"What our clients are concerned about is Your Honour's previous involvement as counsel assisting with the Cole royal commission, which investigated both respondents -- Mr Harkins and the ETU," Mr Borenstein said. "We have also been asked to consider and advise in relation to Your Honour's work acting on behalf of the ABCC."

Mr Harkins has been endorsed as the candidate to replace retiring federal MP Harry Quick in the Tasmanian seat of Franklin, but the allegations that the former Tasmanian head of the Electrical Trades Union breached commonwealth law in organising a 24-hour strike of 81 shop stewards in 2005 has provided the Government with fuel to attack the Opposition Leader over his union connections.

The strike was held during a bargaining period over pay increases between the Communications Electrical Plumbing Union members and electrical contractors.

Mr Borenstein also flagged yesterday that his clients would challenge the constitutional validity of a section of the Building and Construction Industry Improvement Act, which was enacted following the Cole royal commission.

Mr Rudd continued to stand behind Mr Harkins yesterday.

"I see no problem with the facts which have been presented so far by Mr Harkins," he said.

"It appears from what has been presented to me it is a civil matter.

"Mr Harkins will be defending the matter when the ABCC bring forward their action. It's on foot at the moment, I think it's important we allow this process to proceed."

Mr Luvec ordered yesterday that the disqualification matter be heard in the Federal Magistrates Court in Melbourne on September 4.