In line with the rest of the press pack, we’re giving Bill Heffernan and John Howard a fearful lashing.
Crikey also said that if the allegations were found to be without foundation, “Heffernan should be driven out of the Senate and that Howard would stand condemned for his tacit support for Heffernan’s despicable conduct.”
Crikey, correctly in our view, asserted that Heffernan’s speech was never intended to cause a New South Wales police inquiry because he had nothing new or substantial to offer. It was designed to do no less than destroy the victim of his persecution, Justice Kirby. The fact that Heffernan dawdled for so long in sending his alleged evidence to Police Commissioner Ryan showed a clear reluctance to subject it to scrutiny.
Last Thursday Heffernan waved his fabricated Comcar document around in the Senate however he refused to table it. Had he done so it would have been immediately revealed as a forgery and he would have saved Justice Kirby further grief.
Not in recent decades has there been a more grubby and disgusting episode which included the Prime Minister and his can do dirt man. This foul and unsavoury excursion into obsessive homophobia is a remarkably revealing insight into the character of two principle people; Heffernan and Howard.
It is worth reflecting upon Howard’s part in this sordid affair. One of Howard’s most obvious traits is his inability to competently dissemble. The more he knows, the more he transparently denies. Other recent events have reinforced that.
One only has to look at Howard’s demeanour at the time of Heffernan’s allegations and then subsequently when he found his mate’s allegations to be lies and fabrications; whose we are still not sure. Immediately following Heffernan’s obscene allegations Howard’s response was to heighten them by adding further filth in publicly disclosing allegations about an under aged youth.
Howard who had spoken several times to Heffernan about his specific allegations as they related to Justice Kirby, was clearly inclined to a sympathetic view of Heffernan’s claims. Howard’s speech in the parliament is instructive in observing his state of mind about matters.
He justified the worst case of abuse of parliamentary privilege in many years by asserting that “they are issues on which he (Heffernan) feels very strongly and very deeply.” Talking of parliamentary privilege he claims that “it is ultimately there for any of us to use if we believe the circumstances warrant it, otherwise it would not be there.”
“Obviously, given what he sees to be the history of this matter, my colleague Senator Heffernan felt that he was justified in using parliamentary privilege to air the matters which he did.”
So that there was no doubt about where Howard stands on the issue and so as to give the clearest message of endorsement of his friend, Howard offers an irrelevant and gratuitous reference to Heffernan by stating that “the Senator in question enjoys both my affection and my friendship, and I know that he holds the views he has expressed on matters very deeply and very conscientiously.”
“Although he (Heffernan) holds very strongly to the views that he has expressed in the speech and he does not resile from them one iota”
As for a Judge of the High Court, Howard’s endorsement for Justice Kirby was very much more qualified and restrained.
“The judge in question enjoys a high reputation in the legal profession. Mr Justice Kirby has been a member of the high Court for a number of years. He holds in Australia a very good and fine reputation and he is a person who is well known to many people in this place on both sides, including myself. Insofar as our dealings have been necessary, I have always had cordial and gracious dealings with him.”
“Two issues are raised here. One of them relates specifically to the allegations that have been made by Senator Heffernan against Mr Justice Kirby. They need to be further assessed and depending on what comes out of that further assessment, people will make judgements- I suspend mine until such time as that further assessment is made.”
Howard subsequently talked of High Court Judges being dismissed for proven misbehaviour, stating that their dismissal did not require criminality.
Howard’s gratuitous publication under parliamentary privilege of the thus far undisclosed contents of Heffernan’s letter to the New South Wales Police Commissioner which referred to an under aged person was clearly designed to not only justify the misbehaviour of his mate but to throw more dirt at Justice Kirby and to escalate the campaign against him.
Howard’s state of mind is revealed in an interview he conducted with Kerry O’Brien some hours before he learnt the truth about his mate. O’Brien asked Howard why it was now that he had embraced the notion of having “some sort of protocol, for dealing with matters like this involving the allegations against the judiciary?
In particular, O’Brien asked why that course had not been taken up eighteen months ago when the Labor Party had suggested three judges hear complaints about the conduct of Justice Callinan.
John Howard: “We thought those particular allegations were quite groundless?”
It was a bad idea for Callinan because he was innocent and a good idea for Kirby because he was guilty.
There is little doubt that over the months Heffernan has informed Howard of his specific allegations against Kirby and the source of his dirt. Presumably Howard was prepared to accept it on face value. Had Howard been concerned to test the veracity of Heffernan’s claims, he could have within an hour of speaking to Heffernan the evening of his speech in the Senate, discovered from the Department of Finance and Administration that the Comcar “job sheet” was a fabrication.
In fact, Howard could have learnt that the documents had already been found to be forgeries by one of the federal government departments. It did not need, as we now know for the New South Wales police to tell Howard that Heffernan’s claims had no sustance.
Events following the revelation by the Labor Party of the true nature of Heffernan’s documents have all been about defending and protecting Howard. Having allowed his mate to claim to have offered to step aside on Wednesday morning when things were still on track to destroy Kirby, by Monday evening when the allegations had crashed and burnt, Howard announced that he had sacked Heffernan and instructed him as to what he would and would not say in the Senate.
It is interesting that Howard could not control Heffernan when he was a member of Cabinet but he can now that Heffernan in is on the back bench.
Heffernan’s speech of apology and retraction was clearly written by the offices of Howard and Senator Robert Hill. Eighty three words of the speech were devoted to apologising to Kirby and one hundred and seventy seven words were devoted to defending Howard.
Crikey has learnt from a Liberal politician that this is not the first time that Howard’s office has been involved in the conduct and behaviour of a Liberal Senator in the parliament. Apparently the previous occasion also caused considerable concern for some Liberal members.
In December 1999, a meeting took place in Howard’s office with his chief political adviser, Mr Tony Nutt and a number of Western Australia Members and Senators. Among those attending were the present Minister for Justice, Senator Ellison. The issue was Senator Knowles response to revelations which disclosed the circumstances of defamation proceeding that had been successfully taken against her by a former colleague, Noel Crichton-Browne.
The outcome of that meeting was a speech given under parliamentary privilege by Knowles in which she repeated the allegations which were the subject of the defamation. Knowles had previously unreservedly apologised and retracted these allegations in the Western Australian Supreme Court and paid Crichton-Browne $20,000.
Crikey has the feeling that the Heffernan issue has opened up a whole tin of worms as they say and that it still has quite a way to run.
Now let’s look at our coverage before the dramatic resignation and apology.
Why Heffernan is a disgrace
Senator Bill Heffernan demonstrated in the Senate on Tuesday evening to the satisfaction of many people that he is neither fit nor suitable to occupy the position of a Senator in the Australian parliament. If there is any comfort to be found in the appalling misbehaviour of this Liberal Senator, it is that his conduct has disgusted many of his colleagues.
One of Heffernan’s few colleagues who has supported his conduct is the foul mouthed Don Randall, the Western Australian Liberal member for Canning who used parliamentary privilege to describe Cheryl Kernot as having the morals of an alley cat on heat.
Putting aside the fact that Heffernan is little more than a time serving apparatchik who after a term of State President of the New South Wales Liberal Party, was rewarded for his pedestrian service with a Senate seat, he has made no consequential contribution which can be recalled since his arrival.
Heffernan is generally regarded as intellectually dull and lacks any symptoms of contributing to a more enriched and enlightened Australia. His appointment as Cabinet Secretary has nothing to do with merit and everything to do with being Howard’s mate. The position carries no significant responsibilities but it does provide the office holder with a window into the operation of government. This in turn provides Heffernan with sufficient information to pimp and report for Howard.
Heffernan has in the past been notorious for wandering the corridors of the parliamentary press gallery briefing journalists on behalf of the government. Whether this was with the explicit approval of the Prime minister is not clear. These excursions have been curtailed in recent times by the Prime Minister’s office because Heffernan’s clumsy and peculiar interpretation of events, was creating havoc for the government.
Howard’s claim that he was surprised by Heffernan’s speech on Tuesday night is disingenuous although it is highly probably that Howard had no notice that Heffernan would give it when he did.
Some months ago Heffernan informed the Prime Minister’s office that he intended to attack Justice Kirby in the Senate and smear him with the allegation that he was a paediophile. Just minutes before he was due to rise in the Chamber, Howard’s office instructed him not to proceed.
Given Heffernan’s recent activities in respect to the Governor General, it was clear that Heffernan was very likely to defy Howard’s earlier instructions. It certainly should have come as no shock to Howard that he did. The timing was obvious.
It appears highly unlikely that Heffernan volunteered to step aside until the New South Wales Police inquiry is completed, as claimed by Howard. Heffernan did not give his speech to ignite a further police inquiry.
There is no evidence that Heffernan believed that the New South Wales police would again inquire into the matter. His excuse for his misbehaviour in the Senate is that his representations to the police had not delivered him the result he so desperately wanted.
Heffernan’s object appeared to be, to judge, convict and punish Justice Kirby with the penalty of a ruined reputation; all in the one speech.
Had resignation been Heffernan’s idea, he would have resigned before he gave the speech and not afterwards. Even someone of Heffernan’s wit would understand that his speech would have carried far greater weight had it been made at some sacrifice to himself.
As is Howard’s want in matters of sacking his mates, he only acts when all else fails. After two meetings with Heffernan and with universal condemnation from both the media and the judiciary, Howard no doubt instructed Heffernan to resign. Heffernan had as we know, previously informed Howard of his allegations.
As is well known in the press gallery, Heffernan is in the habit of spreading slime and muck against a wide range of people. However homosexuality seems to be his preference for outrage. He claims to know of homosexuals on both sides of the parliament, however he does not seem to have a problem with a gay female Liberal Senate colleague.
The manner and method Heffernan used to smear and traduce Justice Kirby says everything about the author. Heffernan knew that if he had not contrived a devious method to deliver his speech he would have been ruled out of order at the very beginning of his delivery.
Senate Standing Order No 193 (3) reads.
“A Senator shall not use offensive words against either House of the Parliament or of a State or Territory Parliament, or any member of such House, or against a judicial officer, and all imputations of improper motives and all personal reflections of those Houses, members or officers shall be considered highly disorderly.
Heffernan was in clear breach of this rule however because of the manner in which he deliberately subverted the standing order by waiting until the very last line of his speech to identify the target of his accusations, he was not stopped from speaking.
The Greens motion in the Senate on Thursday that the Senate apologise to Justice Kirby which was about to be carried, was derailed by a stupid Democrats amendment that Heffernan be called upon to apologise to Kirby. Kirby will not now receive an apology because Heffernan will not do so. No doubt an apology from the Senate will carry a great deal more weight with Justice Kirby than one from Heffernan.
If the Democrats wanted to claim the limelight, Stott Despoja should have allowed the Greens motion to be carried and moved her amendment as a further substantive motion.
The Democrats notice of motion that Heffernan’s speech be referred to the Senate Privileges Committee is highly unlikely to achieve a result. Labor Senator Robert Ray who chairs the Committee has already expressed his reservations about the appurtenance of the matter to the Privileges Committee.
A motion from the Senate condemning Heffernan would be much more rewarding.
Howard’s claim now picked up by Heffernan that Heffernan used parliamentary privilege as a last resort it utter rubbish. Heffernan has been aching for months to smear Kirby.
Had Heffernan’s motive in smearing Kirby been because he was not satisfied with the previous police investigation, there were a number of appropriate avenues available to him. He could have written directly to the New South Wales Police Minister, Police Commissioner, Director of Public Prosecutions or the Police Integrity Commission.
On the one hand Howard refuses to condemn Heffernan’s use of the Senate to air his allegations against Kirby while on the other hand he claims that “the matter being fully and further investigated by the New South Wales Police is the appropriate procedure.” Do we take it that Howard believes the only route to a New South Wales Police inquiry is through a speech of the nature Heffernan made in the Senate?
Although Heffernan chose not to make it clear in his speech, it appears that other than some Commonwealth car records, he has no new evidence to justify his misbehaviour in the Senate. Equally he has not alleged that the earlier investigation was mishandled or improperly dealt with.
There is no evidence that Heffernan had intended to write to New South Wales Police Commissioner Ryan prior to speaking with Howard and he has given no substantial reasons for the need to use parliamentary privilege to prosecute this matter.
In defending Heffernan’s conduct, Howard said in the House of Representatives that Justice Kirby was entitled to a presumption of innocence. That is not a view Heffernan shares.
His speech left no room for Kirby’s innocence. Amongst his heinous allegations, including improper conduct on the bench, Heffernan accused Kirby of indiscreetly, improperly and illegally using Comcar to trawl for rough trade at the Darlinghurst Wall . He also claims that the police have statements that Justice Kirby played out his fantasies in a fee-for-service arrangement.
Heffernan, as is the habit of zealots particularly in matters of sexuality, has determined that the subject of his fury is absolutely and unquestionably, guilty as charged by Heffernan.
In spite of Howard’s view that Heffernan will be vindicated if his claims are found to be true, for decent and right minded people, the manner in which Heffernan has gone about raising this matter will never be justified. If Justice Kirby is exonerated, Heffernan deserves to be driven from the Senate and Howard will stand condemned for his tacit support of Heffernan’s despicable conduct.
Howard’s claim at this time that the Government needs to adopt a protocol that will provide a more practical and effective mechanism for dealing with complaints of the type Heffernan has made, is little more than a gratuitous distraction to justify his mate’s disgraceful behaviour.
What Heffernan actually told the Senate
Senator HEFFERNAN: (New South Wales – Parliamentary Secretary to Cabinet) (8.43 p.m.)
“The child protection mission statement for any government, institution or parent need be no more complicated than the following statement: all children have a basic right to their childhood and should enjoy an unconditional safe guarantee of passage through their years of innocence.
The catastrophic economic, social and human cost of our failure to achieve this outcome should be set in the terms of a royal commission.
In speaking to the address-in-reply to the Governor-General’s speech, I feel sure that the Governor-General would support the above proposition. I can only hope he would support my exploration tonight of the question of whether judicial legitimacy is a myth without a federal judicial commission.
On 2 July 2000, the Chief Justice of the High Court, in a very sensitive and important speech to the Australian Bar Association Conference in New York, addressed the subject of judicial legitimacy. I would like to quote several extracts from this important speech.
The Chief Justice said in paragraph 4: ‘Judicial power … is held on trust. It is an express trust, the conditions of which are stated in the commission of a judge or magistrate, and the terms of the judicial oath.’
In paragraph 8, His Honour states: ‘The capacity of an individual to make an impartial determination of the facts, and to understand and conscientiously apply the law, is the primary requirement of fitness for judicial office.’
His Honour goes on with regard to judicial discretion: ‘Ultimately, however, in the administration of any law, there comes a point beyond which discretion cannot travel. At this point, if a judge is unable in good conscience to implement the law, he or she may resign. There may be no other course properly available. Judges whose authority comes from the will of the people, and who exercise authority upon trust that they will administer justice according to law, have no right to subvert the law because they disagree with a particular rule. No judge has a choice between implementing the law and disobeying it.’
His Honour addresses the issue of impartiality in paragraph 4: ‘Impartiality is a condition upon which judges are invested with authority.’
He goes on: ‘But to deploy judicial authority in support of a cause risks undermining the foundation upon which such authority rests.’
In paragraph 35, His Honour deals with sustaining judicial legitimacy. He says: ‘The quality which sustains judicial legitimacy is not bravery, or creativity, but fidelity.’
His Honour concludes his speech to the Bar Association Conference by saying: ‘Like fairness, legitimacy should be constantly on display in courts.’
I am concerned that our institutions are in denial on the criteria so eloquently set out by the Chief Justice in his July 2000 speech in New York.
Having read extracts from the case for judicial legitimacy, as set out by the Chief Justice, I would now like to turn to the dilemma to which a fellow judge deployed his judicial authority so eloquently in his speech of 3 July 1999 to the King’s College School of Law in London-that is, the real risk of ‘suicide, blackmail, police entrapment, hypocrisy and other horrors’ suffered by male same sex participants in New South Wales prior to the enactment of the 1984 Crimes Amendment Act (NSW) No. 7.
Subsequent to this speech, there was a further judicial speech on 24 February 2000 to the impressionable young men at St Ignatious College in Sydney – a speech in which an impartial observer may have detected the ‘deployment of judicial authority in support of a cause’.
Having regard to findings in the New South Wales courts last year that certain lifestyle offences committed prior to the 1984 Crimes Amendment Act (NSW) No. 7 could still be prosecuted, it concerned me that some judicial officers could still be captive of the horrific circumstances as described by His Honour in his speech to the King’s College in London on 3 July 1999.
These concerns were further reinforced to me recently by a senior judicial officer who said he could see no solution to this legal minefield. He categorically stated that there should have been no appointments of practising homosexuals to the judiciary in New South Wales prior to May 1984 because of the criminality of certain acts inherent in that lifestyle being prescribed by the law at the time, regardless of whether the law was enforced at the time.
My concerns led me to revisit the transcript of the Wood royal commission and the revelations by the disgraced solicitor, KR5, who provided evidence regarding clients at the boy brothel Costellos in the following terms: “… but it was an amazing place there were lawyers there, judges…”
Unfortunately, KR5 was interrupted mid-sentence by counsel assisting Paddy Bergin-now Justice Bergin – in the following terms: ‘. just pausing there, 05″
The issue of who the judges were was never answered. My inquiries as to when these serious allega-tions would be dealt with were replied to in the following terms: “We have decided not to revisit any of that because the public would lose confidence in the judiciary.”
I believe most people concerned by, or victims of, child sexual abuse have already lost confidence. I have thought long and hard and have come to a very firm conclusion that there is an urgent need in New South Wales to retrospectively legislate to protect people, including some high profile political, judicial, legal and media figures, many of whom presently still lead double lives, and provide these people with legal relief from prosecution for pre-May 1984 lifestyle criminal offences.
Hopefully, this legislation would end the precarious existence to which His Honour referred and hopefully would remove the need for the compromising code of silence which hideously compromised the police special branch, is still compromising police prosecutions in New South Wales and, whether intended or not, has also protected people who see sex with children as a perk of office or, at best, an everyday part of permissible life. Only with this legislation will the child sex offences code of silence be broken, and only then will the ongoing and evident serious compromise of sections of our judicial, legal, political and religious institutions begin to be dismantled.
The tragedy of the Justice Yeldham compromise was a product of this dilemma. The serious fault lines identified and evident at ICAC and the Wood royal commission are testimony to the code of silence at work. Sadly, I have not met anyone who thought the majority of evidence given to support Yeldham by senior legal and judicial figures was believable, nor that the classic escape clause ‘the search for corrup-tion and not crime’ was again used as anything other than a cover-up in sections of its paedophile reference.
If the legal system was not compromised, Yeldham would have been dealt with years earlier than he was. He would probably be still alive and would not have sat in judgment in circumstances that were highly inappropriate, biased and surely failing the test of judicial legitimacy. The Wood royal commission in its final report at 7.226 concluded: “the Commission has looked at factors which contribute to inadequacies in this type of investigation – those identified include an inability to believe that the prominent person would engage in such conduct, in some cases conditioned by respect for or close association with the institution they represent (for example, church or justice system).
I am concerned that similar circumstances still exist. One, of several well known within legal, judicial and media circles but for years like Yeldham considered too sensitive and too difficult to address, I would like to address.
I refer to a judge who has put himself at grave risk of blackmail, entrapment, compromise and hypocrisy. This judge has come to the attention of senior police and the Child Protection Enforcement Agency in New South Wales. His activities and police concerns have been reported by policing authorities to senior judicial officers in both state and federal contexts. I regret to inform the Senate that, over a period of years, I have personally interviewed at great length, and obtained statutory declarations from, former rent boys from Sydney and Wollongong who worked the Wall at Darlinghurst as young male prostitutes, some of whom were taken to an address in Darley Street – an address known to the police, adjacent to the Wall – by this judge on various occasions in a fee-for-service arrangement. I am informed New South Wales police can confirm these activities. I also have in my possession Comcar driver records which document and record this same judge using this tax-payer funded service on a regular basis to pick up from an address known to the police in Clapton Place – adjacent to Kings Cross – a young male and accompany him to the judge’s home address. According to correspondence I have received, these Comcar records, which were officially alleged to have been destroyed in the 1990s under the Archives Act but in fact were still in existence in the year 2000, have been refused to me under FOI, and after being requisitioned many of these documents have now mysteriously disappeared. These records indicate the name of the driver, the car registration, kilometres on the speedometer, time of original pick-up, pick-up location, often any additional pick-ups and, of course, final destination. This particular docket, a typical docket, shows a pick-up of the judge in the basement of the Law Courts at 1900 hours on a given date and a journey via Darlinghurst to the judge’s home address. This docket, besides other jobs, also specifies a job for the same judge at 2300 hours on the same night, a pick-up from the judge’s home address, destination Darlinghurst, which was on this occasion and many others returning the young male to the address in Clapton Place. The docket also notes that the judge did not travel, that the young male was returned unaccompanied.
It is obvious from this docket and others I have the details of that these return journeys on bookings by the judge for an unaccompanied young male companion are a serious breach and unauthorised and contemptuous use of the Comcar service. I am informed that many such jobs were not recorded but, with the co-operation of a member of the since disbanded Sydney allocation office, were ‘foreigners’.
Over a period of time this pattern of Comcar use, which created for some drivers serious concern and misgivings over inappropriate use of the Comcar, was brought to a head. These concerns were raised with the judge. These drivers, who in the public good may have put their jobs at risk, deserve whistleblower protection.
I would now like to raise the trial and conviction of a priest from the Maitland diocese, Vincent Gerard Ryan. He was charged with and found guilty of buggery and sexual abuse of altar boys as young as six years old over a period of 20 years. These crimes of stolen innocence, human violation and betrayal can only be described as abhorrent – made worse, if that is possible, by the ultimate trust these innocent young victims and their parents would have placed in their parish priest, only to discover the ultimate betrayal from a person who delivered first confession and first
Holy Communion to these innocents and then for self-gratification stole their innocence and left a life-long legacy of ruined lives, tortured minds and dysfunctional families. This priest was sentenced to a lengthy jail term in excess of 10 years. He appealed his sentence in the New South Wales Court of Criminal Appeal and lost.
He then appealed for special leave to the High Court of Australia. This special leave application to appeal was heard and granted. In granting special leave to appeal, one of the two judges, in weighting the crimes of the priest and the application for special leave against the reasons and source of the priest’s behaviour, said: “, 05and I just have in the back of my mind that there must be some principle in sentencing that you should take into account that the source is the one source. You could say it was his sexual fantasy. You could say it was his predicament as a priest committed to celibacy. You could give different excuses.
His Honour went even further down a path of judicial adventurism and creativity by relying on another basis to grant the special leave application: “… this man may have been a situational paedophile.’
Are the altar boys and their parents in the Hunter region of New South Wales likely to agree with the legalese of the judge that in some obscure way the priest is a victim because he is an unfortunate situ-ational paedophile with an insatiable sexual fantasy locked in by a vow of celibacy? It has a familiar ring to it. Could the circumstances exist where a reasonable person in the court that day would have reasonable grounds to have an apprehension of bias in the judge’s words and decision on that day? Could the circumstances exist where a reasonable person would also have an apprehension of a subliminal self-defence by the judge?
Earlier in this speech I referred to a judge who has come to the attention of the New South Wales police, who indiscreetly, improperly and illegally used Comcar, who regularly trawled for rough trade at the Darlinghurst Wall, who according to police statements and interviews regularly played out his fantasies in a fee-for-service arrangement, and who is also one of the people whose file was referred to in the final report of the Wood royal commission at 7.288, where the commission concluded in the following terms: “.. the matter is complicated by the manner in which the file was managed and its contents ‘lost’. Whether or not some sinister feature underlines that event, the Commission is very troubled that Rope – the investigating police officer – could have provided a report to Hadley that was clearly incorrect. The Commission finds it hard to accept that this was a result simply of inadvertence. It is more inclined to the view that this was as the result of Rope feeling that he was in a very difficult position in which he lacked proper support or direction. This was almost certainly due in part to the undue deference paid to people in high places, and also due to the entirely inappropriate philosophy at the time that sensitive matters were better left undisturbed and unknown.”
I believe that most Australian families would have the view that this judge fails the test of public trust and judicial legitimacy as set out by the Chief Justice of the High Court in his New York speech and clearly is not fit and proper to sit in judgment of people charged with sex offences against children.
This same judge shares three things in common with the judge who made the speech to the King’s College School of Law and the judge who made the speech to St Ignatius College and the judge who made the observations about Father Vincent Gerard Ryan and granted the special leave application. All four, through the deployment of judicial authority and some adventurism, have made out a historic and compelling case for the establishment of a federal judicial commission. They have all displayed a highly skilled and articulate capacity to manage close public scrutiny and, most importantly, they have all confirmed through their words and actions that indeed judicial legitimacy is a myth without a federal judicial commission – because they are all one and the same person.
I seek leave to table two speeches: one to the Australian Bar Association conference in New York by Justice Murray Gleeson and one to the King’s College School of Law in London by the Hon. Justice Michael Kirby.
Now, ask yourself who briefed pro-Liberal political correspondent Glenn Milne before he penned this column in The Australian on Monday, June 21, 1999. Milne draws a long and very menacing blow in this piece and quotes Australia’s most obsessively homophobic journalist, Piers Akerman.
There’s no justice in politics
By Glenn Milne
LABOR’s pursuit of High Court Judge Ian Callinan is a vortex that could also potentially consume one of the ALP’s own appointees — Justice Michael Kirby.
That makes Labor’s intention to hold a Senate inquiry into Callinan’s behaviour much more than a high-risk political gambit: pitched into the unpredictable waters of political combat it has become an exercise with the capacity to damage, rather than strengthen, the institution of the High Court.
The Coalition is intent on firing a shot across the Opposition’s bow. In the words of one senior Government figure: “This inquiry could lead to places no one expected. It opens the real prospect of a wider inquiry.”
Of immediate significance in this context is Justice Kirby’s decision to “out” the fact of his own homosexuality. In April this year it was discovered that Justice Kirby had declared his sexual preference in the latest Who’s Who. Justice Kirby chose to include the name of his partner.
Kirby stated in his biographical entry their partnership began on February 11, 1969. The significance of this date is that it was 15 years before laws against homosexual relationships between consenting adults were repealed in NSW.
Laws which seek to intrude into sexual acts between consenting adults are an affront to human dignity. The NSW laws in force in 1969 referred to homosexuality as “the abominable crime”. It is the law which was the abomination.
In a social sense, Kirby’s courage in finally deciding to declare his sexual preferences is worthy of applause.
But what is at issue here — raised by the prospect of a Labor-inspired inquiry into Justice Callinan’s behaviour — is not social mores. What is at issue is judicial behaviour. That is the ground on which Labor has chosen to go after Callinan.
It was the Sydney Daily Telegraph’s conservative columnist Piers Akerman who first raised Kirby’s actions and its possible bearing on his position on the High Court bench. In a series of columns Akerman posed this question: “Did the Judge break the law, and if so, do his actions imply that he is not opposed to those who break laws with which he personally disagrees?”
“As Chairman of the Law Reform Commission, Kirby was active in his campaign for homosexual law reform but he did not disclose he had a personal interest in the matter. His lengthy silence about his activities also seems at odds with remarks he made during the High Court decision Mann v O’Neill, 31 July 1997. He wrote: `Whilst judicial officers are ordinarily expected to exhibit a high degree of tolerance of criticism and adverse comment, they are citizens too.
“They are subject to the law.
“As he states that he has been living with a male `partner’ since 1969, does this mean that he is admitting to breaking the federal and State laws regarding homosexual relations from then until they were rescinded in the late 1970s?”
There are those in the Coalition who believe that in the context of Labor’s vendetta against Callinan (a Labor bete noir since he prosecuted the late High Court Judge Lionel Murphy) the questions raised by Akerman contain matters of substance.
In the interests of justice in the broader sense, the threshold for both Callinan and Kirby must be the same; as defined by the Act governing the removal of High Court Judges by Parliament, have they engaged in “proved misbehaviour”.
In the case of Kirby, the question, if it has to be asked, must be; did he prima facie break the law at the time by participating in a homosexual relationship?
Kirby’s defenders will raise the social defence: that the law was an ass and prevailing attitudes should provoke condemnation of any charge against him.
But then consider the case against Callinan. In the case of White Industries v Flower and Hart, the Judge found that Callinan, while in private practice, had advised a legal team on how to delay the trial process: advice which abused court processes.
Two weeks ago the Appeal Court upheld the judge’s original ruling. That cast doubt over Callinan’s conduct, although the court noted that whatever Callinan’s purpose may have been it had no bearing on the final decision in the case.
Labor now thinks it worth an inquiry to determine whether his behaviour was ethical. As Michelle Grattan noted in Friday’s Sydney Morning Herald: “Supporters say, as did [Attorney-General Daryl Williams] that the events were a long time ago, before Callinan was a judge and do not relate to the discharge of his judicial functions.”
Kirby’s defenders would make exactly the same point about his behaviour.
Lawyer and journalist Margot Kingston, again writing in the SMH, said of the proposed Senate committee into Callinan: “Justice Callinan has remained silent. Perhaps this inquiry will see him finally explain his behaviour to the public.”
Ditto, perhaps, for Justice Kirby. The only difference, it seems, is that Kirby was a Labor appointee and Callinan was appointed by the current Coalition Government. Ever since Deputy Prime Minister Tim Fischer made it known prior to Callinan’s elevation that the government was looking for a “Capital C conservative judge”, Callinan has been in Labor’s sights.
Fischer’s outburst hasn’t helped Callinan. But then again the Judge has not assisted his own cause, notably by failing initially to disqualify himself in the Hindmarsh Island Bridge case, only to do so after it was proved he had given a legal opinion on the issue to the government while a barrister.
The question senior Liberals want answered is this: if Callinan’s behaviour is worthy of a Senate inquiry, should Kirby’s behaviour be subject to the same inquiry?
Some key figures in the Coalition say “yes”. They argue that for Labor and the Democrats to do otherwise would be to expose the assault for what it is: a political attack. If Labor starts this fight, the Government may finish it. Including pursuing other avenues; such as questions about why a certain group of Commonwealth employees attached to the High Court threatened to withdraw their services from Kirby, meeting to elect a delegate to go and see the judge to discuss their concerns.
For Labor to pretend its motives are pure is risible. All appointments to the High Court are political. Graham Richardson used to boast about having the numbers at the Cabinet table to get certain nominees up to the bench.
Big issues are at stake here. First, is it worth destroying the careers of two judges over these issues? Second, and more important, is a Senate inquiry worth the damage it could do to the standing of the High Court? Everyone should take a deep breath and step back from the abyss.
* Glenn Milne is chief political correspondent for the Seven network. His column appears in The Australian each Monday.