Shooting at the Judge

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Last Tuesday the Australian Senate sat after lunch and, as usual, began with prayers. From there, proceedings moved along with few surprises; debates about the defense budget and stem-cell research, questions about Tasmania's ferry service. That was until 8:43 p.m., when Bill Heffernan, Liberal Senator and confidant of Prime Minister John Howard, rose to speak. He began by asserting children's right to safe passage "through their years of innocence." But this was no homily. By the time Heffernan sat down, less than 15 min. later, he had accused one of Australia's most senior judges of bias, of consorting with young male prostitutes, and of being unfit to rule on child sex abuse cases. He saved his last words to identify his target: the Hon. Justice Michael Kirby.

Kirby is no small target. One of Australia's most high-profile judicial figures, he is known not only for his formidable legal mind and his six-year tenure on the High Court, but also for his open homosexuality and his readiness to flout judicial convention and speak publicly on social issues. His work overseas has made him "a leading world judge," says George Williams, professor of law at the University of New South Wales. "Australia has had very few such figures in its history." Sen. Heffernan's speech alleged a darker side, claiming that Kirby had used Commonwealth cars to pick up male prostitutes and that he had shown bias in the case of a priest convicted of sexually abusing altar boys. The judge, Heffernan said, "clearly is not fit and proper to sit in judgment of people charged with sex offences against children."

The senator, a farmer from N.S.W., has long campaigned against child sex abuse and what he believes is a "code of silence" protecting offenders in elite political, religious and judicial circles. "He would probably say he is obsessional about fighting child abuse," Robert Hill, the government leader in the Senate, said last week. Heffernan's allegations about Kirby aren't new: he says he took them to N.S.W. police four years ago. The resulting inquiries "did not warrant the laying of any charges," N.S.W. Police Minister Michael Costa said last week. Unhappy with that, and having spoken to Howard last year about his concerns, Heffernan chose to give the allegations a national airing.

His attack, made under the protection of parliamentary privilege, "came across as the act of a coward," says Stephen Parker, Monash University's dean of law. Heffernan has been fiercely criticized-by the legal profession, the Labor Opposition and members of his own party-for not simply taking any fresh evidence to the police. By week's end, Heffernan had stood aside as parliamentary secretary to cabinet-but not lost the support of his Prime Minister-and had posted his evidence to N.S.W. police, who said they would wait until it arrived before deciding whether to reinvestigate his claims.

Apart from a short statement, in which he described Heffernan's "homophobic" claims as "absurd," Kirby, who turns 63 this week, has been silent. But many have been vocal in his defense. Law Council of Australia president Tony Abbott said the council had full confidence in "an outstanding judge"; Family Court Chief Justice Alastair Nicholson said he had "the highest regard" for his fellow judge. Senate rules limit parliamentarians' criticism of individual judges. Sen. Heffernan managed to finish his speech uninterrupted only because he didn't name Kirby until the end. George Williams says it's time for a public inquiry into parliamentary privilege and tougher sanctions against those who misuse it: "This sort of attack does great damage to the High Court and to the reputation of one of our most eminent judges."

The crisis has also renewed calls for a better way to deal with complaints about the judiciary. A judge can be removed by by a vote of Parliament for proven misconduct, but, says Australian Law Reform Commission president Professor David Weisbrot, "how does Parliament receive those complaints, and who investigates them?" Two years ago, the Commission suggested a protocol whereby a panel of eminent persons would investigate complaints on Parliament's behalf, but the proposal received scant public attention. The government says it's now being considered.

In the absence of such a system, some worry that Heffernan's suggestion that Kirby has shown bias-which would fall outside a police inquiry-will hurt public confidence in the judiciary. "I think this has added to a culture of criticism [of court rulings] that has started to look very dangerous," says Monash's Parker. As politicians' attacks have grown, he adds, the federal Attorney-General and some state Attorneys-General have been "backing away from the role of defender of the judiciary. This puts the judiciary in a very difficult position because they really can't speak out in defense of themselves." Federal Attorney-General Daryl Williams maintains the judiciary has no need of his protection. "There can be no credible suggestion," he said last week, "that the High Court, as an institution, is under challenge."

The judge under challenge continued as usual last week, sitting on a case involving contaminated oysters. Some are gloomy about his future. "He has been so besmirched and so attacked that he will have very little credibility no matter where the truth in the matter lies," predicted Labor Sen. Robert Ray. Others are confident that, if the allegations are scotched, Kirby will resume his stellar career: "I think he will, and must, continue doing exactly the job he does, which is being a distinguished judge and thinker about law," says Monash's Parker. In that case, it will be Heffernan's turn to face questions about his conduct.

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