What's
it about?
We're over the worst of it now, but an ill wind blew through the Parliament and the
Courts last month when a maverick Senator rose in the Senate to make unsubstantiated
allegations against our finest Judge. Bill Heffernan, a close political ally of the Prime
Minister, has been engaged in a crusade against child sexual abuse, and last month accused
Justice Michael Kirby of salacious activities that would make him unsuitable to sit on the
High Court. He alleged that Justice Kirby had used taxpayer-funded cars in Sydney for
improper purposes, an allegation that appeared to depend on records that were eight years
old.
It didn't take long for inaccuracies in the document to be detected. As one politician
suggested, Inspector Clousseau could have uncovered the forgery. Three of the politicians
listed as having used the car on the same day denied that they had even been in Sydney!
Who is Michael
Kirby
Michael Kirby practised as a solicitor and then a barrister before his appointment in
1974 as a Deputy President of the Australian Conciliation and Arbitration Commission. He
is in fact the youngest person appointed to Federal judicial office in Australia. He held
that position until 1983 when he was appointed a Judge of the Federal Court, and a year
later the President of the New South Wales Court of Appeal. In February 1996 he ascended
to the High Court.
Most interestingly for us at Law4U, Justice Michael Kirby had had a longstanding
interest and activism on issues of electronic media, cyberspace, and its relationship to
the practice and philosophy of the law and human rights. To paraphrase his own words,
Justice Kirby is the antithesis of the stereotype of the lawyer with the quill pen, and
has been at the forefront of international jurists prepared to face the significant
challenges of new technologies. As long ago as 1978 Justice Kirby was instrumental in the
development of guidelines on the protection of transborder data flows for the OECD, and he
has chaired two Committees of the OECD on Privacy and Data Security.
As Gough Whitlam said last month, Justice Kirby has, without question, the highest
reputation amongst international jurists of any Australian judge.
Should politicians support the High Court?
Heffernan's bogus allegations against Justice Kirby raised an issue above the personal
abuse suffered by Justice Kirby. Is there a responsibility on behalf of our elected
politicians to defend a superior Court judge when they are attacked? Is an attack on the
integrity of the High Court a matter of concern for Parliament?
There has been much discussion as to whether it is the role of the Attorney General to
protect the High Court, including a defence of a High Court Judge whose reputation has
been impugned. The present Attorney-General, Daryl Williams, argues that he is a
politician first, and the Court must defend itself. So what was Justice Kirby meant to do?
Should he have criticised the institution of the Parliament, or entered into a slanging
match with Senator Heffernan, and then compromised the strict non-partisan role of a High
Court Judge? Of course not, and it is to the great credit of Justice Kirby that he took
the high road and did nothing more than issue a short, sharp denial.
This is where Williams may be mistaken - the Attorney General is, of course, an elected
politician and subject to the rule of the Party to which he belongs. But he is also the
first law officer of the land, and as Constitutional Law Professor George Williams has
noted, he therefore has a special obligation to protect the separation of powers between
the judiciary and the legislature. So what should his position be when the institution of
Parliament itself is used to attack a High Court Judge? He could have drawn a clear
distinction between legitimate criticism of a Judge's decisions, as opposed to a personal
attack on a Judge. Allegations of criminal misconduct should be referred to the police,
and Williams could have made this distinction and preserved both his role as a politician
and first law officer. In the past Kirby himself has repeatedly warned that we should not
take the public's faith in the judicial system for granted, and the Attorney General
should ensure it is not eroded.
Our elected leaders may not have been willing to come to the aid of Justice Kirby, but
he had plenty of support amongst his legal peers. Family Court Chief Justice Alistair
Nicholson said the attack "involved a serious breach of the doctrine of separation of
powers and an attack on judicial independence". His comments were echoed throughout
the legal community.
The verdict
Justice Kirby was remarkably generous in his acceptance of Heffernan's apology. He
pointed out, correctly, that his ordeal had damaged the High Court, the Parliament, and
the community. What does it say about the character of a man that, in response to an
outrageous attack on his reputation, he states that "…I reach out my hand (to
Senator Heffernan) in a spirit of reconciliation." And then, rather than harp on the
injustice to himself, downgrades his own importance to instead highlight the
"…dignity of all minorities and a determination to be more careful in future to
uphold our national institutions." Is it an irony that the victim of this sorry
episode is the one who seeks to calm the waters? No, because anyone who has followed
Justice Kirby's remarkable career would know that he is not merely our most exceptional
judge, but also a great person and a great Australian. It is an immense pity that some of
our elected representative cannot rise to the same standard.
By Geoffrey Winn
Creative Director
www.law4u.com.au