03/15/2002 "... and his 'fellow citizen' "

... and his 'fellow citizen'
- Marian Wilkinson (smh.com.au)

Justice Michael Kirby says Bill Heffernan should not "slander a fellow citizen in Parliament". But the rogue senator may have already permanently damaged the judge's standing.

FOR the past six years, since his elevation to the High Court of Australia, Justice Michael Kirby has waited for the moment when a politician would rise to his feet and, under the protection of parliamentary privilege, launch the attack that Bill Heffernan delivered on Tuesday night.

The strain of that wait is now over. Whatever happens from here, however long Kirby remains on the High Court, his reputation is irrevocably damaged. Yesterday, senior politicians on both sides of politics rose to Kirby's defence and eminent lawyers took up the fight on his behalf. But Heffernan's allegations in the Senate that Kirby hired rent boys will now define his image in the minds of many in the general public.

Kirby yesterday described Heffernan's claims as "homophobic ... false and absurd". But when the Prime Minister, John Howard, tabled in Parliament a letter from Heffernan outlining his complaints to the NSW Police Service about the allegations, Howard, in effect, gave credence to Heffernan's attack.

Within minutes it was public knowledge that not only the NSW Police, but Justice Wood's inquiry into pedophilia, the Independent Commission Against Corruption, the NSW Judicial Commission and the Ombudsman had all investigated allegations that Kirby engaged young prostitutes.

It was left to others - the NSW Police Minister, the Opposition Leader and senior Howard Government ministers - to point out that none of these inquiries found any evidence to lay charges against Kirby.

Instead, in the letter put under privilege by Howard, Heffernan could state the allegations against Kirby were "of serious concern for the police" but there was no prosecution because they did not meet the "technical prosecution guidelines of the NSW DPP [Director of Public Prosecutions]". Specifically the accuser was six months shy of 18 at the time of the alleged offence, the legal age of consent for homosexuals in NSW. In other states the age is 16, the same age as the heterosexual age of consent. Heffernan's letter did not make clear whether he was told there was no corroborative evidence at all for the allegations.

Yesterday, the NSW DPP, Nicholas Cowdrey, QC, told the Herald that no allegation of any criminal conduct by Kirby had even come before him.

Heffernan's campaign against Kirby took off after the Wood royal commission report in 1997. When the report came down, Kirby had been on the High Court just 18 months, one of the Keating Labor government's last appointments. His credentials for the position were impeccable. He graduated with first-class honours from Sydney University, was the foundation chairman of the Australian Law Reform Commission, became a Federal Court judge then president of the NSW Court of Appeal, where he sat for eight years.

His wide-ranging interests led him to work in South Africa, Malawi, Cambodia and London, on everything from AIDS programs to labour laws and human rights.

And in 1999, he also became the first High Court judge to openly declare his homosexuality. To both his friends and his enemies it was no surprise.

From the time Kirby rose to prominence in NSW he was dogged by allegations about his private life. It was a disgruntled high-profile

litigant, Kate Wentworth, who first raised the allegations in 1986 after hearing them second-hand at a dinner party. She raised them

with the police, ICAC and the Ombudsman.

The Wood royal commission revisited the allegations in 1997. Until yesterday, its reference to Kirby had never been made public, the High Court judge was simply referred to as "the judicial officer" and said he had denied the allegations. Those findings also stated that: "As the matter stands there cannot be any possible adverse interference against the judicial officer" from the information provided by the original informant.

Soon after, however, the allegations against Kirby were circulating again, this time in the NSW Parliament. It was feared the then MP Franca Arena would name him under privilege after the Wood report came down. But the suicide of another judge, David Yeldham, derailed this idea.

Soon after, a police investigation set up by Commissioner Peter Ryan examined a number of allegations concerning the NSW lawyer John Marsden. Around this time, January 1998, as we now know, Heffernan made his complaint about Kirby to the NSW police. Heffernan also told the Senate he strenuously pursued allegations that Kirby had misused Commonwealth cars to trawl for male prostitutes in Kings Cross.

While the police did look at this claim, one flaw in the allegations, the Herald understands, was that Kirby was in fact in Canberra at the time the Commonwealth car was observed in Kings Cross.

At the end of the investigation, there was no evidence to give to the DPP. One police source says the accusers were considerably unreliable witnesses.

Heffernan's other claim, that Kirby was wrong in allowing an appeal in a pedophile case, quotes Kirby out of context. Other High Court judges agreed with Kirby's judgement. His complaint that Kirby spoke to "impressionable" young men at St Ignatius College about the law and homosexuals ignored the fact that he was invited to speak there on a controversial topic.

Kirby made it clear yesterday he did not intend to let the attack interfere with his performance of his judicial duties. Whether this is possible remains to be seen. Despite the lack of evidence for any charges against Kirby, he is damaged by the attack and it could well eat away at his standing and strength.