PM extended Kirby attack: QC

Prime Minister John Howard had seriously extended the sex allegations against Justice Michael Kirby, according to a Melbourne Queen's Counsel.

Brian Walters, QC, said Mr Howard's statement to Parliament last week had undermined the separation of court and state, and also breached long-standing parliamentary practice that MPs did not attack judges, and the Parliament's standing orders.

His legal opinion, provided for Greens Senator Bob Brown at the weekend, came as another QC, Neil Brown, said Senator Bill Heffernan risked becoming an embarrassment to his party.

"If I was a Cabinet minister there today I would be very worried about seeing the Secretary of the Cabinet hooting and hollering down the corridors of the parliamentary Press Gallery like some sort of reject from a Mardi Gras parade," Mr Brown, a former deputy Liberal leader, said, referring to Senator Heffernan's theatrical attempt to avoid media questions on Friday.

"I think that's very demeaning behaviour and I would not like to see my Government coloured by that sort of behaviour."

NSW Police were still waiting last night for the evidence Senator Heffernan claims to have sent last week, but it was reported yesterday that the material comprised two pages - a Comcar job sheet and a statutory declaration from a prostitute.

The driver's job sheet from April 1994 reportedly showed Justice Kirby was picked up from work at 7pm and taken, via Darlinghurst, to his Rose Bay home, the trip taking 50 minutes. At 11pm, a passenger was taken from Justice Kirby's home to Darlinghurst, in a 20-minute trip, without Justice Kirby in the car.

The August 2000 statutory declaration is from a former male prostitute who claims Justice Kirby had taken him to a Darley Street unit near The Wall [a pick-up spot] on "several" occasions. The prostitute is reported to have been a witness in the John Marsden defamation trial, where his evidence was rejected as unreliable.

Last week, Justice Kirby rejected Senator Heffernan's accusations as homophobic, false and absurd.

Senator Brown said the legal opinion from Mr Walters showed Mr Howard's actions were as serious an abuse of parliamentary privilege as Senator Heffernan's.

On Wednesday, Senator Heffernan accused Justice Kirby, an openly homosexual High Court judge, of using his Commonwealth car to "trawl for rough trade".

On Thursday, Mr Howard tabled letters from Senator Heffernan in the House that gave new detail.

Mr Howard told Parliament that, according to Senator Heffernan, the allegations of paedophilia had been investigated by police, who had found them "of serious concern", but had decided not to prosecute because the boy had been aged 17 years and six months [the age of consent for males in NSW is 18] and "in their assessment it would not meet the technical prosecution guidelines".

Opposition Leader Simon Crean said Senator Heffernan and the Government were in trouble if this was all the evidence against Justice Kirby.

"If this is all the additional information that Heffernan is relying upon, it is scant indeed," he told reporters.

"That information in the past has been rejected by both the NSW Police and a Royal commissioner."

Mr Walters said Mr Howard's tabling of the letters seriously extended the allegations against Justice Kirby, containing the imputation that Senator Heffernan had alleged criminal conduct, the allegations had been of serious concern to police, and that only technical issues prevented prosecution.

"The fact that the letter tabled by the Prime Minister was authored by Senator Heffernan does not lessen the responsibility of the Prime Minister himself in tabling it," Mr Walters said.

"In so doing, there can be no doubt that the Prime Minister used Parliament to substantially extend the attacks on a member of the judiciary."

It had been long-standing practice that MPs could criticise court judgments but never the judges - because such criticism could politicise the judiciary so it was no longer seen as independent of government.

"Such a situation has the capacity to fundamentally undermine the effectiveness of the constitutional system of government enjoyed by the people of Australia," he said.

Mr Howard's office said Senator Brown was effectively accusing Mr Howard of "offensive behaviour" and the judgment about what constituted offensive behaviour, according to House of Representatives practice, rested with the Speaker.

Labor frontbencher Lindsay Tanner would not comment on whether it was acceptable for a judge to trawl the streets for a prostitute, but said criminal allegations should be referred to police (and the police had previously rejected Senator Heffernan's allegations against Justice Kirby) and allegations of misbehaviour should go to the High Court Chief Justice.

"Senator Heffernan is not just a rogue backbencher. He's not just some obscure loose cannon. He is John Howard's hatchet man," Mr Tanner said in a television interview.

Tomorrow the Democrats will try to refer Senator Heffernan to the Senate privileges committee


	Government News Index site index HOME PM extended Kirby attack: QC By KIRSTEN LAWSON Prime Minister John Howard had seriously extended the sex allegations against Justice Michael Kirby, according to a Melbourne Queen's Counsel. Brian Walters, QC, said Mr Howard's statement to Parliament last week had undermined the separation of court and state, and also breached long-standing parliamentary practice that MPs did not attack judges, and the Parliament's standing orders. His legal opinion, provided for Greens Senator Bob Brown at the weekend, came as another QC, Neil Brown, said Senator Bill Heffernan risked becoming an embarrassment to his party. "If I was a Cabinet minister there today I would be very worried about seeing the Secretary of the Cabinet hooting and hollering down the corridors of the parliamentary Press Gallery like some sort of reject from a Mardi Gras parade," Mr Brown, a former deputy Liberal leader, said, referring to Senator Heffernan's theatrical attempt to avoid media questions on Friday. "I think that's very demeaning behaviour and I would not like to see my Government coloured by that sort of behaviour." NSW Police were still waiting last night for the evidence Senator Heffernan claims to have sent last week, but it was reported yesterday that the material comprised two pages - a Comcar job sheet and a statutory declaration from a prostitute. The driver's job sheet from April 1994 reportedly showed Justice Kirby was picked up from work at 7pm and taken, via Darlinghurst, to his Rose Bay home, the trip taking 50 minutes. At 11pm, a passenger was taken from Justice Kirby's home to Darlinghurst, in a 20-minute trip, without Justice Kirby in the car. The August 2000 statutory declaration is from a former male prostitute who claims Justice Kirby had taken him to a Darley Street unit near The Wall [a pick-up spot] on "several" occasions. The prostitute is reported to have been a witness in the John Marsden defamation trial, where his evidence was rejected as unreliable. Last week, Justice Kirby rejected Senator Heffernan's accusations as homophobic, false and absurd. Senator Brown said the legal opinion from Mr Walters showed Mr Howard's actions were as serious an abuse of parliamentary privilege as Senator Heffernan's. On Wednesday, Senator Heffernan accused Justice Kirby, an openly homosexual High Court judge, of using his Commonwealth car to "trawl for rough trade". On Thursday, Mr Howard tabled letters from Senator Heffernan in the House that gave new detail. Mr Howard told Parliament that, according to Senator Heffernan, the allegations of paedophilia had been investigated by police, who had found them "of serious concern", but had decided not to prosecute because the boy had been aged 17 years and six months [the age of consent for males in NSW is 18] and "in their assessment it would not meet the technical prosecution guidelines". Opposition Leader Simon Crean said Senator Heffernan and the Government were in trouble if this was all the evidence against Justice Kirby. "If this is all the additional information that Heffernan is relying upon, it is scant indeed," he told reporters. "That information in the past has been rejected by both the NSW Police and a Royal commissioner." Mr Walters said Mr Howard's tabling of the letters seriously extended the allegations against Justice Kirby, containing the imputation that Senator Heffernan had alleged criminal conduct, the allegations had been of serious concern to police, and that only technical issues prevented prosecution. "The fact that the letter tabled by the Prime Minister was authored by Senator Heffernan does not lessen the responsibility of the Prime Minister himself in tabling it," Mr Walters said. "In so doing, there can be no doubt that the Prime Minister used Parliament to substantially extend the attacks on a member of the judiciary." It had been long-standing practice that MPs could criticise court judgments but never the judges - because such criticism could politicise the judiciary so it was no longer seen as independent of government. "Such a situation has the capacity to fundamentally undermine the effectiveness of the constitutional system of government enjoyed by the people of Australia," he said. Mr Howard's office said Senator Brown was effectively accusing Mr Howard of "offensive behaviour" and the judgment about what constituted offensive behaviour, according to House of Representatives practice, rested with the Speaker. Labor frontbencher Lindsay Tanner would not comment on whether it was acceptable for a judge to trawl the streets for a prostitute, but said criminal allegations should be referred to police (and the police had previously rejected Senator Heffernan's allegations against Justice Kirby) and allegations of misbehaviour should go to the High Court Chief Justice. The Government was "trashing" the country's major institutions, he said. "Senator Heffernan is not just a rogue backbencher. He's not just some obscure loose cannon. He is John Howard's hatchet man," Mr Tanner said in a television interview. Tomorrow the Democrats will try to refer Senator Heffernan to the Senate privileges committee Canberra Times Index