Alternative Law Journal
Hollywood must be tempted to make a movie out of the Justice Kirby/Senator Heffernan debacle that dominated the front pages of our newspapers for one week in March this year. Imagine the pitch to the studio bosses:
There is a Judge. He is a good man and a very good lawyer. He has a dog and a partner-a male partner. He is quick witted and wise in court. Maybe Gene Hackman. He gets more attention than most Judges because of his tendency to speak publicly about issues close to his heart-human rights, access to justice and stufflike that. Meanwhile, there is an evil Commonwealth driver - Sharon Stone. She is feeding fabricated bile about 'rent boys' and the Judge to a political zealot-Russell Crowe. The politician spews forth in the Senate. The spotlight is on the Judge. He denies all. But he is in an impossible position. There is no forum to resolve the accusation. The Prime Minister (Anthony Hopkins or Hugh Grant) and the Attorney-General (John Travolta) stand mute. The attention on the Judge and the Court becomes insufferable. Erin Brockovich is enlisted to expose the ruse. The Senator apologises and withdraws. The Judge is a hero. As the screen fades to black, the vindicated Judge is receiving a standing ovation from an adoring audience of law students.
This description might be comical were it not for the fact that there is absolutely nothing to prevent a repeat of this scenario.
What actually happened? Senator Bill Heffernan's allegation made to the Senate on 12 March 2002 was that Justice Kirby was not 'fit and proper to sit in judgment of people charged with sex offences against children.' He gave three reasons for this conclusion. First, Justice Kirby had delivered speeches at King's College School of Law in London and St Ignatious College in Sydney in which he decried the consequences of the criminalisation of private consensual homosexual conduct between adults. Second, the Judge made comments during an application for special leave about what might constitute mitigating factors when sentencing a priest in relation to sexual offences involving children. Third, it was alleged the Judge had arranged for Commonwealth car bookings 'for an unaccompanied young male companion [in] a serious breach and unauthorised and contemptuous use of the Comcar service'. Prime Minister John Howard responded in Parliament with a statement that Justice Kirby enjoyed a 'very good and fine legal reputation' and was entitled to the presumption of innocence. The Prime Minister went on to say that he would suspend judgment on the allegations until a further assessment of evidence was made by the NSW Police. Attorney-General Daryl Williams released a media release adopting the views of the Prime Minister.
My interest is in the role of the Attorney-General. The Attorney-General could and should have said much more. On any view, Justice Kirby's speeches outside court and his comments made in court did not give rise to any question about his fitness for judicial office. The Attorney could have made these points in his media release. The allegations of criminal conduct required investigation. However, it was appropriate to sound a note of caution about the allegations. By the time of the Attorney's media release it was clear that the NSW police had previously concluded that similar allegations made by the Senator did not merit further investigation. The Attorney could have said that natural justice demands that caution should be applied before accepting the allegations of criminal conduct.
It is interesting to contrast this response of the Attorney General with his response when Justice Callinan's ethical conduct as a barrister was the subject of criticism by a Federal Court Judge in White Industries (Qld) Pty Ltd v Flower & Hart (a firm)  806 FCA (14 July 1998). Then the Attorney-General issued a press release giving detailed reasons for not holding an inquiry. He said that an inquiry would threaten the independence of the judiciary and dam age the standing of the court. He made reference to the fact that the events involving the Judge took place 12 years prior to judicial appointment and did not relate to the discharge of judicial functions. Finally, he noted that the case was on appeal and 'natural justice suggests that caution should be applied before accepting findings on matters' still subject to examination. It was the right response. Calm was restored pending the appeal. In Flower & Hart (a firm) v White Industries (Qld) Pty Ltd  FCA 773 (11 June 1999) the Full Federal Court concluded that it may have been unsafe for the trial judge to make adverse findings about Justice Callinan.
It is difficult to escape the conclusion that the Attorney-General has got himself into a pickle with his oft stated view that it is no longer appropriate for the Attorney General to play a role in defending judges in the media. A former Attorney-General and Chief Justice of South Australia has examined this view and concluded that an important political function of the modem Attorney-General is to de fend the judiciary when irresponsible criticisms threaten to undermine public confidence in the court: L.J. King 'The Attorney-General, Politics and the Judiciary', (2000) UWA Law Review 155. I agree.
Ultimately, the rule of law is dependent on public confidence in the courts. When a personal accusation is made against a judge, nobody is better placed to maintain public confidence in the courts than the Attorney-General. The manner in which Senator Heffernan made his allegations was irresponsible. He should have gone to the police. As for the Attorney-General, he should have done what he could to maintain public confidence in the judiciary.
Martin Flynn is a senior lecturer in the Faculty of Law, University of Western Australia
ALTERNATIVE LAW JOURNAL