The Guardian March 20, 2002

Attack on Kirby collapses

by Marcus Browning

In dramatic circumstances the Prime Minister has been forced to sack 
Senator Bill Heffernan as Secretary to the Cabinet and to call on him to 
make an "unreserved apology" to Justice Kirby and to the Senate.

It had been revealed that the Comcar document which claimed to record the 
use of a Commonwealth Car by Justice Kirby and others was found to be 
fraudulent. It was apparently this revelation that forced a reluctant Prime 
Minister to act against a close adviser and personal friend.

However, the full story behind the attack on Justice Kirby has yet to be 
revealed but any supposition that it was the one-off action of a homophobic 
Senator is disproved by the support given to Heffernan by the Prime 
Minister and Attorney-General Daryl Williams up to the time of the fraud 
being revealed.

The incident began to unfold with the cowardly attack in the Senate on 
Justice Kirby by Senator Heffernan who hid behind parliamentary privilege. 
He publicly smeared High Court Judge Michael Kirby as a child sex offender. 
It was a coward's act by a fanatical homophobe. As such it contained the 
vicious inference that homosexuality is to be equated with paedophilia.

The Prime Minister admitted that he had discussed the matter with Senator 
Heffernan on several occasions but claims he advised the Senator against 
raising the matter. At no time, however, did the Prime Minister have a 
check made on the authenticity of the documents used by Heffernan, nor did 
he publicly repudiate Heffernan's action.

Daryl Williams also failed to give any support to Justice Kirby. It is 
considered as an obligation for an Attorney General to back up Justices of 
the Supreme Court.

Howard also showed his complicity by reading into Hansard a letter from 
Bill Heffernan which also made allegations against Justice Kirby.

Part of this deliberate and orchestrated campaign involves the government 
setting up a protocol which would provide for the investigation of "serious 
complaints" against members of the federal judiciary  federal 
magistrates, and members of the High Court, Family Court and Federal Court.

An "independent" committee made up of retired judges and other legal 
experts would administer the protocol. It would look into complaints and 
report to Parliament which would then decide whether or not to dismiss the 
object of the complaint from his/her post.

Senator Heffernan has given a fine example of how it might work  slander, 
slur, innuendo, accusations, defamation.

If successful, the attack on Justice Kirby would have enabled the 
government to replace him with some reactionary appointment to the High 
Court. This comes at a time when the High Court could be dealing with 
important challenges to extremely dangerous and reactionary legislation to 
remove basic democratic and human rights in Australia.

In a statement Justice Kirby, who is openly gay, said: "Senator Heffernan's 
homophobic accusations against me in the Senate are false and absurd.

"If he has such accusations he should approach the proper authorities, not 
slander a fellow citizen in Parliament. Insofar as he attempts to interfere 
in the performance of my duties as a judge, I reject the attempt utterly."

Heffernan has been shown to be yet another liar in a government of 
inveterate liars.

It is believed that the documents submitted by Heffernan have already been 
considered by the NSW police, who found that there was no grounds for 
taking any action against the Judge.

"I am advised these investigations did not warrant the laying of any 
charges in connection with any matters recently raised by the Senator", 
said NSW Police Minister, Michael Costa.

On Howard's aiding and abetting of Heffernan, Greens Senator Bob Brown said 
that the Prime Minister had abused the Standing Orders by extending 
Heffernan's abuse of parliamentary privilege from the Senate to the House 
of Representatives.

Revealing the deeper purpose behind the slander, Howard told the House that 
"proved misbehaviour" (which can be used by Parliament to remove a High 
Court judge) "can take many forms and cover a lot of conduct".

"Any kind of misbehaviour involving people under-age would disqualify 
people in a whole lot of positions, not just being a High Court judge", he 

At that juncture someone should have pointed out the refugee children 
locked behind razor wire in detention camps under the Government's 
immigration policy.

Support for Kirby has come from individuals and organisations including the 
Law Society of NSW, the Family Court Chief Justice Alistair Nicholson, the 
Law Council of Australia, and University of NSW law professor George 
Williams, who noted the judge had no case to answer as a police 
investigation had already cleared him.

An open letter signed by 35 supporters of Justice Kirby, including a former 
Liberal Premier and former Liberal MPs, stated in part: "We regard him as a 
person of the highest moral character and integrity. We are deeply angered 
that the reputation of this good man should have been besmirched by an 
attack made under parliamentary privilege.

"This attack will have succeeded if it lessens Justice Kirby's ability to 
function effectively on the bench of the High Court. That must not be 
allowed to happen."

The attack on Justice Kirby is the second occasion on which Heffernan has 
used the Senate to attack individuals. Last year he used the Senate to 
attack Terry O'Shane who is the brother of progressive Magistrate, Pat 
O'Shane. He also heaped slander on the leaders of ATSIC. None of his 
allegations have resulted in any action against the individuals concerned.

Not only must Heffernan be removed as Howard's Cabinet Secretary, but he 
should face criminal charges and be removed from Parliament.

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