Mar 12 – John Howard’s confidante and Liberal Party eyes and ears, the Parliamentary Secretary to the Cabinet, Senator Bill Heffernan, made a disgraceful speech to the Senate last night, alleging that High Court Justice Michael Kirby is “not fit and proper to sit in judgment of people charged with sex offences against children”.
Heffernan only named Michael Kirby as the final two words in a speech which alleged that a judge has “indiscreetly, improperly and illegally used Comcar” and “trawled for rough trade at the Darlinghurst Wall”.
The parliamentary privilege accorded to members of parliament allows them to make unsubstantiated allegations in the Parliament without fear of defamation.
- Listen to portions of Heffernan’s speech (9m)
- Listen to Deputy Senate President Sue West on Parliamentary Privilege (1m)
- Listen to ALP Senate Leader John Faulkner on Heffernan (5m)
Hansard transcript of a speech delivered by the Parliamentary Secretary to the Cabinet, Senator Heffernan, to the Senate:
Senator HEFFERNAN (New South Wales—Parliamentary Secretary to Cabinet) (8.43 p.m.)– The child protection mission statement for any government, institution or parent need be no more complicated than the following statement: all children have a basic right to their childhood and should enjoy an unconditional safe guarantee of passage through their years of innocence. The catastrophic economic, social and human cost of our failure to achieve this outcome should be set in the terms of a royal commission.
In speaking to the address-in-reply to the Governor-General’s speech, I feel sure that the Governor-General would support the above proposition. I can only hope he would support my exploration tonight of the question of whether judicial legitimacy is a myth without a federal judicial commission. On 2 July 2000, the Chief Justice of the High Court, in a very sensitive and important speech to the Australian Bar Association Conference in New York, addressed the subject of judicial legitimacy. I would like to quote several extracts from this important speech. The Chief Justice said in paragraph 4:
Judicial power … is held on trust. It is an express trust, the conditions of which are stated in the commission of a judge or magistrate, and the terms of the judicial oath.
In paragraph 8, His Honour states:
The capacity of an individual to make an impartial determination of the facts, and to understand and conscientiously apply the law, is the primary requirement of fitness for judicial office.
His Honour goes on with regard to judicial discretion:
Ultimately, however, in the administration of any law, there comes a point beyond which discretion cannot travel. At this point, if a judge is unable in good conscience to implement the law, he or she may resign. There may be no other course properly available. Judges whose authority comes from the will of the people, and who exercise authority upon trust that they will administer justice according to law, have no right to subvert the law because they disagree with a particular rule. No judge has a choice between implementing the law and disobeying it.
His Honour addresses the issue of impartiality in paragraph 4:
Impartiality is a condition upon which judges are invested with authority.
He goes on:
But to deploy judicial authority in support of a cause risks undermining the foundation upon which such authority rests.
In paragraph 35, His Honour deals with sustaining judicial legitimacy. He says:
The quality which sustains judicial legitimacy is not bravery, or creativity, but fidelity
His Honour concludes his speech to the Bar Association Conference by saying:
Like fairness, legitimacy should be constantly on display in courts.
I am concerned that our institutions are in denial on the criteria so eloquently set out by the Chief Justice in his July 2000 speech in New York.
Having read extracts from the case for judicial legitimacy, as set out by the Chief Justice, I would now like to turn to the dilemma to which a fellow judge deployed his judicial authority so eloquently in his speech of 3 July 1999 to the King’s College School of Law in London—that is, the real risk of ‘suicide, blackmail, police entrapment, hypocrisy and other horrors’ suffered by male same sex participants in New South Wales prior to the enactment of the 1984 Crimes Amendment Act (NSW) No. 7. Subsequent to this speech, there was a further judicial speech on 24 February 2000 to the impressionable young men at St Ignatious College in Sydney—a speech in which an impartial observer may have detected the ‘deployment of judicial authority in support of a cause’.
Having regard to findings in the New South Wales courts last year that certain lifestyle offences committed prior to the 1984 Crimes Amendment Act (NSW) No. 7 could still be prosecuted, it concerned me that some judicial officers could still be captive of the horrific circumstances as described by His Honour in his speech to the King’s College in London on 3 July 1999. These concerns were further reinforced to me recently by a senior judicial officer who said he could see no solution to this legal minefield. He categorically stated that there should have been no appointments of practising homosexuals to the judiciary in New South Wales prior to May 1984 because of the criminality of certain acts inherent in that lifestyle being prescribed by the law at the time, regardless of whether the law was enforced at the time.
My concerns led me to revisit the transcript of the Wood royal commission and the revelations by the disgraced solicitor, KR5, who provided evidence regarding clients at the boy brothel Costellos in the following terms:
… but it was an amazing place there were lawyers there, judges ….
Unfortunately, KR5 was interrupted mid-sentence by counsel assisting Paddy Bergin—now Justice Bergin— in the following terms:
… just pausing there …
The issue of who the judges were was never answered. My inquiries as to when these serious allegations would be dealt with were replied to in the following terms:
We have decided not to revisit any of that because the public would lose confidence in the judiciary.
I believe most people concerned by, or victims of, child sexual abuse have already lost confidence. I have thought long and hard and have come to a very firm conclusion that there is an urgent need in New South Wales to retrospectively legislate to protect people, including some high profile political, judicial, legal and media figures, many of whom presently still lead double lives, and provide these people with legal relief from prosecution for pre-May 1984 lifestyle criminal offences.
Hopefully, this legislation would end the precarious existence to which His Honour referred and hopefully would remove the need for the compromising code of silence which hideously compromised the police special branch, is still compromising police prosecutions in New South Wales and, whether intended or not, has also protected people who see sex with children as a perk of office or, at best, an every-day part of permissible life. Only with this legislation
will the child sex offences code of silence be broken, and only then will the ongoing and evident serious compromise of sections of our judicial, legal, political and religious institutions begin to be dismantled.
The tragedy of the Justice Yeldham compromise was a product of this dilemma. The serious fault lines identified and evident at ICAC and the Wood royal commission are testimony to the code of silence at work. Sadly, I have not met anyone who thought the majority of evidence given to support Yeldham by senior legal and judicial figures was believable, nor that the classic escape clause ‘the search for corruption and not crime’ was again used as anything other than a cover-up in sections of its paedophile reference. If the legal system was not compromised, Yeldham would have been dealt with years earlier than he was. He would probably be still alive and would not have sat in judgment in circumstances that were highly inappropriate, biased and surely failing the test of judicial legitimacy. The Wood royal commission in its final report at 7.226 concluded:
… the Commission has looked at factors which contribute to inadequacies in this type of investigation—those identified include an inability to believe that the prominent person would engage in such conduct, in some cases conditioned by respect for or close association with the institution they represent (for example, church or justice system).
I am concerned that similar circumstances still exist. One, of several well known within legal, judicial and media circles but for years like Yeldham considered too sensitive and too difficult to address, I would like to address.
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.
According to correspondence I have received, these Comcar records, which were officially alleged to have been destroyed in the 1990s under the Archives Act but in fact were still in existence in the year 2000, have been refused to me under FOI, and after being requisitioned many of these documents have now mysteriously disappeared. These records indicate the name of the driver, the car registration, kilometres on the speedometer, time of original pick-up, pick-up location, often any additional pick-ups and, of course, final destination. 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.
It is obvious from this docket and others I have the details of that these return journeys on bookings by the judge for an unaccompanied young male companion are a serious breach and unauthorised and contemptuous use of the Comcar service. I am informed that many such jobs were not recorded but, with the cooperation of a member of the since disbanded Sydney allocation office, were ‘foreigners’. Over a period of time this pattern of Comcar use, which created for some drivers serious concern and misgivings over inappropriate use of the Comcar, was brought to a head. These concerns were raised with the judge. These drivers, who in the public good may have put their jobs at risk, deserve whistleblower protection.
I would now like to raise the trial and conviction of a priest from the Maitland diocese, Vincent Gerard Ryan. He was charged with and found guilty of buggery and sexual abuse of altar boys as young as six years old over a period of 20 years. These crimes of stolen innocence, human violation and betrayal can only be described as abhorrent — made worse, if that is possible, by the ultimate trust these innocent young victims and their parents would have placed in their parish priest, only to discover the ultimate betrayal from a person who delivered first confession and first Holy Communion to these innocents and then for self-gratification stole their innocence and left a life-long legacy of ruined lives, tortured minds and dys-functional families.
This priest was sentenced to a lengthy jail term in excess of 10 years. He appealed his sentence in the New South Wales Court of Criminal Appeal and lost. He then appealed for special leave to the High Court of Australia. This special leave application to appeal was heard and granted. In granting special leave to appeal, one of the two judges, in weighting the crimes of the priest and the application for special leave against the reasons and source of the priest’s behaviour, said:
… and I just have in the back of my mind that there must be some principle in sentencing that you should take into account that the source is the one source. You could say it was his sexual fantasy. You could say it was his predicament as a priest committed to celibacy. You could give different excuses.
His Honour went even further down a path of judicial adventurism and creativity by relying on another basis to grant the special leave application:
… this man may have been a situational paedophile.
Are the altar boys and their parents in the Hunter region of New South Wales likely to agree with the legalese of the judge that in some obscure way the priest is a victim because he is an unfortunate situational paedophile with an insatiable sexual fantasy locked in by a vow of celibacy? It has a familiar ring to it. Could the circumstances exist where a reasonable person in the court that day would have reasonable grounds to have an apprehension of bias in the judge’s words and decision on that day? Could the circumstances exist where a reasonable person would also have an apprehension of a subliminal self-defence by the judge?
Earlier in this speech I referred to a judge who has come to the attention of the New South Wales police, who indiscreetly, improperly and illegally used Comcar, who regularly trawled for rough trade at the Darlinghurst Wall, who according to police statements and interviews regularly played out his fantasies in a fee-for-service arrangement, and who is also one of the people whose file was referred to in the final report of the Wood royal commission at 7.288, where the commission concluded in the following terms:
… the matter is complicated by the manner in which the file was managed and its contents ‘lost’. Whether or not some sinister feature underlines that event, the Commission is very troubled that Rope—
the investigating police officer—
could have provided a report to Hadley that was clearly incorrect. The Commission finds it hard to accept that this was a result simply of inadvertence. It is more inclined to the view that this was as the result of Rope feeling that he was in a very difficult position in which he lacked proper support or direction. This was almost certainly due in part to the undue deference paid to people in high places, and also due to the entirely inappropriate philosophy at the time that sensitive matters were better left undisturbed and unknown.
I believe that most Australian families would have the view that this judge fails the test of public trust and judicial legitimacy as set out by the Chief Justice of the High Court in his New York speech and clearly is not fit and proper to sit in judgment of people charged with sex offences against children.
This same judge shares three things in common with the judge who made the speech to the King’s College School of Law and the judge who made the speech to St Ignatius College and the judge who made the observations about Father Vincent Gerard Ryan and granted the special leave application. All four, through the deployment of judicial authority and some adventurism, have made out a historic and compelling case for the establishment of a federal judicial commission. They have all displayed a highly skilled and articulate capacity to manage close public scrutiny and, most importantly, they have all confirmed through their words and actions that indeed judicial legitimacy is a myth without a federal judicial commission — because they are all one and the same person.
I seek leave to table two speeches: one to the Australian Bar Association conference in New York by Justice Murray Gleeson and one to the King’s College School of Law in London by the Hon. Justice Michael Kirby.
The ACTING DEPUTY PRESIDENT (Senator Calvert)—Is leave granted?
Senator George Campbell—No, it is not. We have not seen them.
Senator HEFFERNAN—They are public documents.
Senator George Campbell—It is a courtesy to let us see them first.
The ACTING DEPUTY PRESIDENT—Leave is not granted, but I suspect that it may be granted later. I will return to the question later on, Senator, once the shadow minister at the table has perused the documents.