Whenever someone abuses parliamentary privilege, the cry goes out to restrict it.
This time NSW Liberal Senator Bill Heffernan has made an outrageous attack on High Court judge Justice Michael Kirby.
All four elements of the attack are laced with holes, but more of that anon.
The outrageousness of the attack is made obvious by the statement from NSW Police Minister Michael Costa that police previously had investigated Senator Heffernan’s information and found no need to continue investigations. If dissatisfied with the police investigation Senator Heffernan could have taken his information to the Police Integrity Commission. If he was still unsatisfied, a speech in Parliament was still open to him, and this is important.
It is a terrible price for Justice Kirby, but it would be a greater price for society to remove parliamentary privilege.
Parliamentary privilege is not a privilege of a Member of Parliament, but a privilege of a Member’s constituents. The privilege enables the Member to speak on behalf of constituents without fear of being sued in the civil courts for defamation. It is an immunity rather than a privilege. MPs have other immunities, notably from being arrested while on parliamentary business.
An abuse of privilege of this nature is fairly rare. This is because it has some in-built corrective mechanisms, some of which have already come into play in this case with more to follow.
First, the MP is subject to the discipline of the House he or she is a Member of. The House, or in this case the Senate, can suspend or censure a Member. However, since 1987, a Member cannot be permanently expelled.
Secondly, a Member who abuses privilege is subject to discipline from their own party. A member might be regarded as such a lose cannon as to be a liability to the party, and lose pre-selection, or at least have the threat of it imposed to ensure there is no repetition.
Then other individual MPs can make comments that make the MP look fairly silly – especially if they come from the offending MP’s own side. In this case Foreign Minister Alexander Downer has already done so and at the time of writing Prime Minister John Howard was about to. Senators from both sides made speeches yesterday condemning Senator Heffernan.
Also, members of the community rally to the support of the victim.
Further, defamation law gives responders to attacks whether by a parliamentarian or anyone else, a special privilege or immunity from themselves being successfully sued. There are conditions to it, but it enables an attacked person to make allegations which would otherwise leave him or her open to a damages award.
Lastly, the Senate allows people who feel they have been unfairly attacked a right to a reply in Hansard.
Obviously, these six correcting mechanisms are not perfect – as the instant case reveals. But the rarity of these cases shows how well they do work. Parliamentary privilege is not open slather and is open to abuse as all privileges and immunities are.
But correct channels do not always work – we know that police forces in Australia are not idea; that whistleblowers get victimised by people who should protect them; that bureaucracies cover up their misdeeds. After they fail, a Member of Parliament is about the only place for someone to go to air malfeasance in a way that will prompt investigation. The best example of that was Edward StJohn’s campaign to get an inquiry into the Voyager disaster in the 1960s. There are numerous examples of parliamentary privilege being used effectively, especially to expose malfeasance by the executive government.
With such a powerful privilege, the balance is difficult. Once fetters are put upon it, though, it disappears. If we give more protection to individuals, we will lose the power the privilege gives to MPs to make the executive more accountable and as a place of last resort to correct wrongs.
Now to Senator Heffernan’s specific allegations. The NSW Police Minister has apparently punched a whole in the most serious – that Justice Kirby used Commonwealth cars to ferry male prostitutes.
The other allegations conclude that Justice Kirby is not suited to be a judge because of his admission that he has a male partner and statements he has made inside and outside the court about that lifestyle. The reasoning is bizarre.
Senator Heffernan started his speech by quoting a speech from Chief justice Murray Gleeson in July 2000.
Gleeson said, “”Impartiality is a condition upon which judges are invested with authority. But to deploy judicial authority in support of a cause risks undermining the foundation upon which such authority rests.”
He then quoted two speeches by Justice Kirby. One was in July 1999 when Justice Kirby pointed out that before changes to the law in NSW in 1984 decriminalising homosexual acts, there was a real risk of “suicide, blackmail, police entrapment, hypocrisy and other horrors”. The other was in February 2000 to Riverview St Ignatius College in Sydney at which Justice Kirby said there was nothing wrong with a homosexual lifestyle.
Senator Heffernan said an impartial observer would have detected in these speeches the “”deployment of judicial authority in support of a cause”.
Absurd.
Justice Kirby was giving a speech in public, not exercising judicial authority. The exercise of judicial authority is when a judge decides a case. Under the Heffernan view of Chief Justice Gleeson’s speech no judge would be able to undertake any role whatever in the community. When a judge, Justice John Gallop supported cricket. Justice Terence Higgins supports the Royal Life Saving Society and so on.
Then Senator Heffernan suggests that because the 1984 law change in NSW was no retrospective, homosexual acts engaged in before that date might be criminal offences and prosecutable (according to some unnamed judicial officers cited by Senator Heffernan). Justice Kirby has stated he has had a male partner since 1969, so Senator Heffernan reasons that Justice Kirby might be captive of fear of exposure, blackmail, police entrapment and so on.
Twaddle. There is no threat of prosecution.
The other assertion involved a homosexuality-paedophilia link. Senator Heffernan’s asserted that Justice Kirby engaged in judicial adventurism in being one of two judges who granted special leave to a Catholic priest to appeal against the severity of a sentence for 14 counts of sexual abuse of boys. The adventurism was Justice Kirby’s thought that it might be possible to “”take into account that the source [of the criminal conduct] is the one source . . . situation paedophilia.” Senator Heffernan then asked (presumably, rhetorically), “”Could the circumstances exist where a reasonable person in court that day would have reasonable grounds to have an apprehension of bias . . . [or] have an apprehension of a subliminal self-defence by the judge?
In other words, Senator Heffernan is saying that because Justice Kirby is a homosexual he will go easy on a paedophile.
Aside from the baseless homosexual-paedophile link, Senator Heffernan misunderstands sentencing law and the way the High Court works. Applications for special leave are heard on the spot. Leave is granted for a full hearing there and then. Only after a full hearing are considered judgments brought down. So in a special leave hearing, judges will muse over issues.
The priest concerned faced a total sentence of 22 years with a minimum of 15-more than most NSW sentences for murder. None of it was made concurrent with an existing sentence. Usually sentences will run concurrently if they spring from the same incident. In the full hearing, the question of what effect a condition of being a serial paedophile should have on a sentence was mentioned, but did not form the base of the successful appeal. Justice McHugh thought any discount for the mental condition of paedophilia would be outweighed by the need to deter others and protect society. But that was an aside. And Justice Kirby also said the question should be left for another case. The appeal was allowed because the judge failed to give any discount on the sentence for the priest’s good character because people expected priests to have good character and he abused that position. Also the judge gave no discount for pleading guilty and admitting offences that would never otherwise be disclosed.
Justice Kirby thought it in the public interest to encourage disclosure and it helped victims. It was also unfair that a Catholic priest who did other good works could not have them counted like others in the community.
Senator Heffernan drew too long a bow on the speeches and the judgments. That might say something about the other allegations.