It did not take long for the accusations that Senator Bill Heffernan made against High Court judge, Justice Michael Kirby, to unravel. Part of Senator’s Heffernan’s “”evidence” that Justice Kirby had used Commonwealth cars to pick up male prostitutes was the Commonwealth car diver’s job card. The job card included the names of others on Commonwealth business on the day in question, including Opposition MP Laurie Brereton and for MP Ian Sinclair. It would not have taken much to check with them whether they travelled on the dates in question. When the Daily Telegraph published the “evidence”, Mr Brereton saw his name on the sheet as having travelled in Sydney. He was in fact holidaying in Hayman Island.
The fact that the “”evidence” was so easily discredited reveals that Senator Heffernan was a best impetuous and lacking judgment, but also very likely that his judgment was clouded by his campaign against paedophilia and perhaps by homophobia.
It shows that his use of parliamentary privilege was an abuse of it. Moreover, the way he crafted his speech and the timing of its delivery in the evening’s adjournment debate are telling. His speech did not mention Justice Kirby’s name until the last two words, which then related back to accusations earlier in the speech to a “”judge”. It gave no opportunity to the presiding officer to bring him to order. In short is was sneaky.
Senator Heffernan has been forced to resign his position as Cabinet Secretary and to apologise to Justice Kirby.
But that is not enough. Senator Heffernan has been named as a government member of the Senate committee inquiring in the children overboard affair. The Kirby exercise shows that his judgment is so bad that he should not be entrusted with any forensic task. The Government should replace him on that committee.
It seems unlikely that Senator Heffernan will resign from the Senate, but he should not be expelled. Indeed, at the law – the Parliamentary Privileges Act — stands he cannot be. And that is how it should be. It is too dangerous for democracy for elected representatives to be exposed to expulsion by their peers except on conviction of a serious criminal charge. The voters can decide in 2005 if they want him as a senator – if the Liberal Party is foolish enough to endorse him.
Several other questions arise. Should there be changes to parliamentary privilege? The answer must be no, despite this case and the damage it has done to the innocent Justice Kirby and the institution of the High Court. The immunity that MPs have to air grievances of their constituents without fear of libel actions is an important safety valve, particularly as “”proper channels” have often failed in the past. The fact that this abuse has been so quickly corrected with obvious and permanent damage to the abuser, is sufficient deterrence against a repetition.
What of Prime Minister John Howard? Senator Heffernan was one of his closest advisers, confidants and friends. It reflects on Mr Howard that he has made such a poor choice of political confidant.
Further, in the days after Senator Heffernan’s outburst, Mr Howard did not disown Senator Heffernan. He did not even remain neutral. Rather he made a statement that the “”misbehaviour” that the Constitution requires for the removal of a High Court judge might be something less than criminal conduct. Given the timing, Mr Howard was siding with Senator Heffernan against Justice Kirby. Mr Howard owes Justice Kirby an apology, too.