This story was found at:
http://www.theage.com.au/articles/2002/03/14/1015909883872.html
THE AGE
Heffernan's agenda fits Howard's plan
By Jenny Hocking
March 15 2002
Some years ago, High Court judge Michael Kirby addressed
students at St Ignatius College in Riverview. It was a speech that
Senator Bill Heffernan found particularly troubling. In it, Kirby spoke
of "the game of shame", the denial of homosexuality which he was
unwilling to play: "You should reject 'poofter bashing' and
harassment of people you think might be gay. This is the conduct
of cowards. These are the attitudes that led to the burning of
heretics, the Holocaust, the Pink Triangle of the Nazis."
Yet in Kirby's powerful call for tolerance, compassion and equality,
Heffernan could read only advocacy for "a cause", describing it in
parliament this week as an example of Kirby's unsuitability for
judicial office.
Heffernan's misuse of parliamentary privilege to impugn the integrity
of a High Court judge constitutes also a significant attack on the
independence of the judiciary. Heffernan's stated dissatisfaction
with Kirby's judgments, together with his bizarre suggestion that
Kirby's homosexuality may preclude him from acting impartially is
clearly an attempt to interfere with his duties as a judge.
But it is Kirby's approach to his role as a High Court judge in
general that has bothered over recent years John Howard and
Attorney-General Daryl Williams. Despite the traditional role of
attorneys-general protecting the court from attack, Williams has
been silent. It is here that a broader political issue comes into play
in this scandalous attack, for Kirby is seen by many, and has
indeed described himself as, a radical on the bench.
He now joins the late High Court judge Lionel Murphy as a radical
judge "named" in a parliament as a precursor to the establishment
of immensely damaging personal inquiries.
In both cases unfounded claims of the unsuitability of an individual
judge not only indicate the political nature of the allegations but
directly compromise the independence of the judiciary. For a judge
of the High Court to succumb to a baseless parliamentary charge
would directly compromise the independence essential for
continued confidence in the legal system.
There are those who have eagerly claimed that in the interests of
the court a judge, once attacked in this way, must go. In my view it
is in the absolute interest of the court that Kirby stay.
Yet Heffernan's attack is as sinister as it is cowardly for it masks
this more profound agenda which he is running in tandem with
Howard.
Let there be no misapprehension about the Prime Minister's
parallel interest in this judicial fracas, different from Heffernan's, yet
intersecting with it.
While Heffernan's "obsession with homosexuality" has been widely
remarked upon, this reflects only Heffernan's specific interest in
Kirby. Howard's interest, however, is in the big picture, in reshaping
the mechanism for the dismissal of judges and hence recasting the
key constitutional means of effecting the separation of powers.
Kirby's particular case is merely the means through which this
more profound shift is now being engineered.
Under our constitution the dismissal of a judge of the High Court
can occur only through both houses of parliament voting for
removal. Despite (or perhaps because of) the fact that this section
has never been used, Howard considers that it now needs urgent
review because "there is no preliminary procedure to assess the
value or otherwise of allegations".
This is an extraordinary statement, suggesting as it does not only
that police investigations are an inadequate preliminary procedure
but that there ought to be differential treatment of claims made
against judicial figures from those made against other members of
the community.
Specifically, Howard is suggesting vesting unprecedented power in
the Executive to establish a body to investigate claims against
judges. Under such a scheme, any allegation, regardless of its
veracity and no matter how politically motivated, would result in
irreparable damage to a judicial contender. This is a recipe for
executive control, which is unnecessary and dangerous.
Howard has defended Heffernan's outburst, saying that since
Heffernan was not satisfied with earlier police investigations into
claims against Kirby, he "exercised his right to further ventilate
those matters". The implications of this proposition are dire, for
these claims had been traversed several times by police and a
royal commission and had been found unsubstantiated and
unsustainable.
That ought to have been the end of it.
Yet rather than insisting to Heffernan that the matter should be
dropped, the Prime Minister appears to justify as a "right" their
subsequent parliamentary "ventilation", presumably until an
outcome is achieved with which Heffernan, rather than the courts,
is satisfied. It is a suggestion that places parliamentary trial over
the rule of law.
When he chose to make public his homosexuality, Kirby spoke of
his need for honesty personally and as a judge; "It's not easy for
everybody to do what I did because many people live in a world
where there is still real prejudice and discrimination against them,
when their jobs would be on the line. If I had remained silent I would
have been conspiring in my own belittlement and I was not willing
to do that."
Bill Heffernan, John Howard and the silent Daryl Williams have
continued that for him.
Dr Jenny Hocking heads Monash University's National Key Centre
for Australian Studies and is the author of Lionel Murphy: A
Political Biography (Cambridge University Press, 2000).
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