Late at night on 12 March 2002, Senator Bill Heffernan made a speech to a half-full and surprised Senate accusing High Court Judge Michael Kirby of, amongst other things, picking up rent boys in Commonwealth cars. It was a speech calculated to destroy the reputation and career of one of Australia's leading jurists, and was based on the flimsiest of evidence.

Justice Michael Kirby

Michael Kirby was appointed to the High Court on 15 December 1995, replacing Justice William Deane when he left the High Court to become Australia's Governor-General. Michael Kirby had served for some years previously as the President of the New South Wales Court of Appeal. He was a leading proponent of human rights, a strong supporter of reading human rights protections into the Constitution, and this position has not earned him the love of those on the conservative side of politics.

A further irritant to certain conservatives would have been his rumoured sexuality. He is gay, but at the time of his appointment he had not publicly come out. This led to rumours about his lifestyle, and the more lurid of these rumours had him consorting with young male prostitutes acting out weird sexual fantasies. These rumours became so widely circulated that the Wood Royal Commission into paedophillia investigated the claims in 1997, but they were found to be completely without substance.

In 1999, Michael Kirby submitted his entry for that year's edition of Who's Who in Australia. It contained the following information:

p. [abbreviation for partner] Feb. 11, 1969 Johan A van Vloten.

Kirby had come out in the most understated way possible, declaring he had been living for thirty years with his partner, Johan van Vloten. Michael Kirby was now the first openly gay justice of the High Court of Australia.

Senator Bill Heffernan

Bill Heffernan, a sheep farmer from Junee, was elected to the Senate in 1996. He is a close friend of Prime Minister John Howard, and was appointed Cabinet Secretary. This is a position that has no substantial responsibilities, but allowed Heffernan to sit in on cabinet meetings. Heffernan became known as Howard's "attack dog", enforcing Howard's will amongst the Liberal Party backbenches.

Heffernan was a tireless, some would say obsessive, campaigner against paedophillia, and appears at times to have blurred the distinction in his own mind between homosexuality and paedophillia. He was convinced that there was a circle of gays and paedophiles in the police, judiciary and even Parliament that were protecting each other while indulging their depraved desires. He kept dossiers on prominent homosexuals, and spent time in Darlinghurst and Kings Cross talking to young male prostitutes, trying to dig up dirt. He spoke often to journalists trying to get them to follow up on his "leads", but none were interested. His main focus was on Kirby, convinced by the rumours and Kirby's now public homosexuality that Kirby was a child molester.

Eventually, frustrated by his lack of progress with police and the media, he decided to make his suspicions public. Australia has quite harsh defamation laws, and to speak publicly without strong evidence would leave Heffernan open to lawsuit. However, politicians have access to the defence of parliamentary privilege: nothing said in Parliament can be the subject of a defamation action. Heffernan decided that he would make his allegations from the Senate, safe from the defamation laws.

The Speech

A Senate Standing Order says that:

A Senator shall not use offensive words against ... a judicial officer, and all imputations of improper motives and all personal reflections of those ... officers shall be considered highly disorderly.

Had Heffernan stated at the beginning of his speech that he was to talk about a specific judge, he would have been ruled out of order and not been permitted to continue. To circumvent this, he carefully constructed his speech so that Kirby was not named until the final words of the speech, Heffernan instead referring to "a judge" or "this judge".

Excerpts of the speech follow.

I refer to a judge who has put himself at grave risk of blackmail, entrapment, compromise and hypocrisy. This judge has come to the attention of senior police and the Child Protection Enforcement Agency in New South Wales. His activities and police concerns have been reported by policing authorities to senior judicial officers in both state and federal contexts. I regret to inform the Senate that, over a period of years, I have personally interviewed at great length, and obtained statutory declarations from, former rent boys from Sydney and Wollongong who worked the Wall at Darlinghurst as young male prostitutes, some of whom were taken to an address in Darley Street – an address known to the police, adjacent to the Wall – by this judge on various occasions in a fee-for-service arrangement. I am informed New South Wales police can confirm these activities. I also have in my possession Comcar driver records which document and record this same judge using this taxpayer funded service on a regular basis to pick up from an address known to the police in Clapton Place – adjacent to Kings Cross – a young male and accompany him to the judge's home address.
This particular docket, a typical docket, shows a pick-up of the judge in the basement of the Law Courts at 1900 hours on a given date and a journey via Darlinghurst to the judge's home address. This docket, besides other jobs, also specifies a job for the same judge at 2300 hours on the same night, a pick-up from the judge's home address, destination Darlinghurst, which was on this occasion and many others returning the young male to the address in Clapton Place. The docket also notes that the judge did not travel, that the young male was returned unaccompanied.

The speech also referred to a speech Kirby had made to the students of private Catholic high school St Ignatius, calling for tolerance of homosexuality, and claimed this was an inappropriate speech to be made to "impressionable young men". He also claimed that Kirby was using his position to subvert the law and push a cause of homosexual rights.

Initial reactions

The reaction to the speech was one of almost universal condemnation. Former Prime Minister Gough Whitlam labeled Heffernan a disgrace. The Law Society described the speech as a cowardly attack. the general consensus was that Heffernan should have taken any evidence he had to the police, rather than publicly smear Kirby from the privileged seat of Parliament. Prominent members of both sides of politics (including Foreign Minister Alexander Downer) spoke in Kirby's defence, highlighting his excellent character and making the sort of tributes usually only made after the subject's death.

Justice Kirby made no comment on matter to the media, instead issuing the following public statement:

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.
In so far as he attempts to interfere in the performance of my duties as a judge I reject the attempt utterly.

By contrast, Prime Minister John Howard defended Heffernan's actions. He said that "Given what he sees to be the history of this matter, my colleague Senator Heffernan felt justified in using parliamentary privilege to air the matters which he did." Howard held several talks with Heffernan during the day following the speech, and it was probably at Howard's suggestion that Heffernan offered to step down from his position as Cabinet Secretary while his claims were investigated. That day in the House of Representatives Howard also entered into the Parliamentary record several letters from Heffernan to NSW Police Commissioner Peter Ryan, which detailed the allegations and in particular alleged that one of the prostitutes was 17 years and 6 months old, escalating the issue from one of improper use of a Commonwealth car to child abuse, as the age of consent for male to male sex in New South Wales is 18.

The issue now centered on the evidence Heffernan claimed to possess, and the potential Constitutional issues involved if a Justice of the High Court was proved to have been engaged in the activities alleged.

Constitutional issues

The Constitution provides for the removal of High Court judges in s 72:

The Justices of the High Court and of the other courts created by the Parliament-
    (ii) Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.

No High Court judge has ever been removed from office under s 72, and so what would constitute "proved misbehaviour" is not clear. It had generally been thought that criminal behaviour would be required, but the Prime Minister said that "proven misbehaviour under the constitution can take many forms and cover a lot of conduct. It's not defined. It doesn't necessarily have to be behaviour of a criminal kind." This raised the possibility that, if there was no proof of criminal behaviour, the Prime Minister may still force Parliament to debate the removal of a High Court judge because of details of his sex life.

The "evidence"

Once Senator Heffernan made his speech, he was surprisingly coy about revealing the evidence he claimed to have. After some public pressure he mailed it to NSW Police Commissioner Peter Ryan two days after making his speech. By the following weekend (March 16, four days after Heffernan's speech) several newspapers had managed to obtain copies of the evidence.

Heffernan's evidence consisted of two single-page documents. The first was a statutory declaration from a male prostitute, claiming to have had several sexual encounters with Kirby at Darlinghurst. This former prostitute had also made similar allegations about solicitor John Marsden, but his evidence there was completely discredited in Marsden's successful defamation suit against the television station which aired the claims.

The second part of Heffernan's evidence was a copy of a Comcar docket from 2 April 1994 that documented a trip Kirby took from Darlinghurst (location of "the Wall", where male prostitutes are readily found) to his home in Rose Bay, and a later trip back to Darlinghurst in which Kirby did not travel.

The evidence was flimsy to say the least, and the NSW Police indicated that they contained nothing to warrant any new investigations.

The next day, everything fell apart for Senator Heffernan. The Comcar dockets published in the weekend papers also contained other trips made that day by other people. Labor MP Laurie Brereton noticed that he was on the docket as well, and thought it odd. He checked his diaries for that day and found that it was Easter Saturday, and had been holidaying with his family on Heyman Island. Brereton revealed this in a press conference, where he said that "Inspector Clouseau could have worked out that this was a very funny job sheet for an Easter Saturday, but it's clear to me that the record of me traveling in that job sheet is a fabrication." Other people mentioned in the Comcar record checked their whereabouts on the day in question. Former Labor MP John Dawkins was in Fremantle on that day preparing for his daughter's christening, and former National Party leader Ian Sinclair said it was unlikely he was in Sydney on that day, as he usually spent Easter on his farm with his family. It was clear that the Comcar record was a forgery.

The aftermath

As soon as John Howard realised the Comcar docket was a forgery, he sacked Senator Heffernan from his position as Cabinet Secretary, and instructed him to make a statement to the Senate and issue a full apology to Justice Kirby.

Senator Heffernan made his apology, although in the speech he devoted twice as much time explaining that it was all his own doing and the Prime Minister had nothing to do with any of it than the time taken apologising. The Comcar record had, Heffernan explained, been given to him by a Comcar driver, and Heffernan didn't know it was fabricated. The driver, it turned out later, had once been Howard's personal driver, although there is nothing to suggest this was anything more than a coincidence.

Justice Kirby later released a statement accepting the apology in a typically graceful manner:

My family and I have suffered a wrong. But it is insignificant in comparison to the wrong done to Parliament, the High Court and the people.
I have been sustained by my innocence, by the love of my partner and family and support and prayers from all sections of the community.
I accept Senator Heffernan's apology and reach out my hand in a spirit of reconciliation. I hope that my ordeal will show the wrongs that hate of homosexuals can lead to.
Out of this sorry episode, Australians should emerge with a heightened respect for the dignity of all minorities. And a determination to be more careful in future to uphold our national institutions – the Parliament and the Judiciary.

There were many calls for Heffernan to resign from the Senate and leave politics altogether, but these calls were resisted both by Heffernan and the Prime Minister. Howard continued to stand by his friend, despite the monumental incompetence and vindictiveness he displayed in accusing a High Court Judge of being a paedophile on the basis of "evidence" that was demolished within hours of being made public. Howard said that Heffernan had suffered enough: "He's paid a very heavy and deserved penalty for the mistake he made. He has suffered an enormous public humiliation." The idea that Heffernan had suffered at any time during the affair was new to most people. Heffernan remains in the Senate today, and is unlikely to be hounded out while Howard remains Prime Minister.

There were also calls for the Prime Minister to apologise to Justice Kirby. Howard had throughout the affair appeared far more ready to accept Heffernan's account of the truth than Kirby's denial. Howard tabled in Parliament Heffernan's allegation that Kirby had had sex with a minor, raised the possibility that Kirby could be removed for non-criminal misbehaviour, and even after the Comcar docket was revealed to be a forgery spoke to NSW Police to see if there were any old allegations worth investigating before calling for Heffernan's resignation. Howard always claimed that he had not agreed with Heffernan abusing parliamentary privilege the way he did, but he gave every sign during the affair that he was on Heffernan's side. In keeping with his policy on just about everything, Howard did not apologise.

There was speculation early in the affair that, even if the allegations were unproved, Kirby's reputation would be forever damaged. It appears, however, that the immediate widespread public support he received, and the dignified way he handled the matter, have merely enhanced Kirby's reputation. He is likely to remain on the High Court until he reaches the mandatory retirement age of 70.

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