Justice left hanging in the breeze
- Type of protection : Granting release
- Category: Uncategorised
- Created: Saturday, 02 April 2011 23:03
- Written by AJ Brown - Sydney Morning Herald
Kirby learnt of Heffernan's attack when he arrived at the High Court for work, at 6 the next morning, when he received a phone call from ABC Radio. The journalist faxed him The Sydney Morning Herald's front page: ''Senator's tirade: Kirby unfit to judge pedophiles''.
Soon his staff arrived and found the chambers flooded with phone calls, faxes and emails.
With relative calmness, Kirby put a defence plan into place, telling them to let the switchboard field the calls and prepare for a normal day in court. He rang family members, repeating to them that the Comcar evidence could not be true.
His main outward concern was difficulty alerting his partner, Johan van Vloten, who was asleep in their apartment and ignoring the phone.
Kirby prepared a statement refuting the allegations, giving it to the High Court registrar, Chris Doogan, to distribute in Parliament House: ''Senator Heffernan's homophobic accusations against me in the Senate are false and absurd. If he has such accusations, he should approach the proper authorities, not slander a fellow citizen in Parliament. In so far as he attempts to interfere in the performance of my duties as a judge I reject the attempt utterly.'' Kirby's immediate denial helped his colleagues maintain the illusion the court was an unflappable institution. After a brief discussion they carried on as if nothing was happening.
Heffernan, who was then cabinet secretary to the prime minister, John Howard, had been spreading the accusation among colleagues and media since at least mid-1999 without gaining much traction. However, in late 2000 he had met secretly in a motel with Wayne Patterson, who had been the prime minister's driver.
Patterson handed over a thin sheaf of photocopied documents - supposedly driver records - which Heffernan described in the Senate as concrete evidence of trips in which Kirby used cars to pick up and return a ''young male companion''.
The legal profession rose in uproar against Heffernan's attack. The Senate ruled that Heffernan had breached standing orders by making a personal attack on a judicial officer without apparent cause.
But the government rallied behind Heffernan. Howard made clear his personal support, repeating and extending the allegations in Parliament. Yet, despite the growing momentum towards some kind of inquiry into Kirby's fitness for office, no proper investigation of Heffernan's documents had occurred.
Nearly a year earlier, Heffernan had squarely asked the Department of Finance and Administration if some of the records were fakes, and had been told it was ''not possible to comment'' on their authenticity. In fact, as Patterson later confirmed, the records were just ''mock-ups''. Comcar management knew Heffernan's information could not be real, but declined to say so.
Heffernan may already have been convinced that Kirby was not fit to remain a judge, but the only public servants who knew his information to be bogus failed to make that clear to him, or to anyone else.
As he prepared to defend himself the morning after the speech, Kirby asked Doogan to try to establish whether Heffernan's ''evidence'' was out of Comcar's own records. In response next day, a department officer, Greg Rynehart, revealed to the High Court's marshal that records supplied by Heffernan had been ''examined by several long-serving Comcar administration staff who came to the unanimous conclusion that they were bogus''.
This advice was quickly relayed to Doogan, Kirby and the chief justice, Murray Gleeson. Finally, it was known outside Comcar and the department that there had always been doubts about Heffernan's material. But in the High Court this revelation produced startlingly different reactions.
In the first 48 hours, only one of Kirby's six judicial colleagues had walked the small distance to his chambers to offer direct support - his past adversary and recent comrade, Mary Gaudron. At 5pm on the Thursday, she was the next to learn the news about bogus documents. Waiting at Canberra airport for their flight back to Sydney, Kirby showed her the internal memo relaying the High Court marshal's crucial advice.
Next morning, as Howard spoke on Sydney radio about the likely inquiry into Kirby, Gaudron phoned Doogan, demanding to know what was being done. Doogan faxed her the memo and confirmed that Gleeson already knew. But although it was known in the court that there was official reason to doubt the documents, none realised that they were actually the first people outside Comcar to learn this news.
Now the differences in judicial personalities came to the fore. With Gleeson, Bill Gummow and Ian Callinan sitting in court, Gaudron spoke to their remaining colleagues - Michael McHugh in his Sydney chambers, and Ken Hayne by phone in Melbourne. Gaudron said Hayne reacted as she had: that if faked evidence was involved, this must be seen as an attack on the whole court.
Hayne's response, according to Gaudron, was to draft a press release, saying the judges had become aware the allegations involved documents whose authenticity was being questioned. Gaudron described the draft release as ''fairly innocuous, except when you related it to Michael Kirby - then it was saying, 'Don't rush to bloody judgment.' ''
When Gleeson, Gummow and Callinan emerged from court, Gaudron ushered them into her chambers to explain what was proposed. However, the reaction she got was not what she expected. According to Gaudron, the normally controlled chief justice lost it: ''He was screaming at me. 'Who do you think you are? Have you appointed yourself press secretary to this court? Do you think you could issue press statements? What right did you have to go to Chris Doogan and get these?'
''He was furious with me. And there wasn't really a reason to be furious with me … It was unprecedented … And I wasn't shouting, until he went off the rails, and I said: 'Get out of my chambers. I don't want to see you in my chambers again, and I won't speak to you again, but rest assured I'm going to do something about this. I'm not going to let the matter lie.' ''
Gaudron assessed Gleeson as having deliberately sat on the revelation that the Comcar documents were fake, even wrongly assuming he had known this for a long time. Gleeson saw Gaudron as assaulting his authority and usurping proper process. Paralysed by division, the court did nothing. But after the explosion, Gaudron did what she threatened. That afternoon she became the first known whistleblower in High Court history.
She phoned Trish Kavanagh, who was a close friend, NSW judge and the wife of the senior opposition politician Laurie Brereton. A short time later, Gaudron met Kavanagh in the street and handed her the High Court memo.
Before Brereton could act, everyone finally got to see the crucial Comcar sheet being relied on by Heffernan - on the front page of Sydney's Sun-Herald. Despite it being the weekend, Department of Finance and Administration staff were at work, trying to assemble the whole history. In response to the Sun-Herald article, every Comcar was finally accounted for; none had made the journeys that Heffernan described.
As others pored over The Sun-Herald, the names of other passengers became visible - including, by incredible coincidence, Laurie Brereton. Already alerted by Gaudron, he knew the Comcar sheet was a fake, because on April 2, 1994, he was not travelling in any Comcar in Sydney - he was on a family holiday on Queensland's Hayman Island.
Ignorant of what others now knew, Howard asked Gleeson to meet him at his Sydney office. Finally, on the Monday afternoon, Gleeson passed on to Howard what he later described as everything he knew, including the advice about bogus documents. But Gleeson left the meeting with an inquiry still apparently in play.
At the same time, events were unfolding which killed that idea forever. At 3pm on Monday, Brereton called a media conference in Parliament House where he used a blown-up copy of the Comcar sheet from The Sun-Herald to show why the document could not be real. In minutes the news was relayed across the nation and around the world.
The prime minister told Heffernan that he had to resign as parliamentary secretary and apologise to Kirby and the Senate. At 7.05pm Howard fronted journalists at Sydney Airport, announced this news and then boarded a flight to London.
That Monday was also Kirby's 63rd birthday. He was at work in his Sydney chambers when his associate rushed in with a copy of an online news page: ''Heffernan papers false''. He went home to finish his birthday with Johan as mere observers to a media frenzy which was now focused on how Heffernan and Howard could have been so wrong.
Coming so soon after the ''children overboard'' affair, the political reputations of the government and prime minister were left permanently damaged.
As far as the public was concerned, Kirby had emerged as the moral winner of the conflict. Large sections of society wanted it known that they did not share any supposed baseline culture of prejudice.
But tensions continued to reverberate between judges, and between judges and the government. Gaudron announced her early retirement soon after the crisis. As she cleaned out her chambers, she left Kirby a prophetic note: ''I suspect you will tread a lonely path in the next few years.''
Source : https://www.smh.com.au/national/justice-left-hanging-in-the-breeze-20110401-1crbg.html