Asking for trouble: Michael Kirby and the homophobes

(Melbourne Star, March 2002)

LAST TUESDAY night, as all the world now knows, Senator Bill Heffernan, 
Parliamentary Secretary to the Cabinet and close friend of Prime Minister John 
Howard, rose in the Senate and accused a Justice of the High Court of Australia, 
Michael Kirby, of using a Commonwealth car to pick up male prostitutes. 

These allegations had been made before - though not in public - but Heffernan 
claimed to have new evidence. This week that "evidence" turned out to be a 
statutory declaration from a discredited witness and a forged ComCar docket. On 
Monday night Howard told Heffernan to resign and apologise.

Kirby has had his name cleared, but since Heffernan is protected by parliamentary 
privilege - which means he cannot be sued for defamation - there is nothing more 
that Kirby can do. At 63, he has seven more years on the High Court bench. How 
this week's events will affect his career remains to be seen. It seems likely that his 
enemies will soon be plotting another assault.

Heffernan was led into the folly of his attack on Kirby by his own blind 
homophobia. In last week's Sydney Star Observer, federal Labor frontbencher 
Mark Latham described Heffernan as having a "bizarre obsession" with 
homosexuality. Democrat Senator Brian Greig spoke of several unpleasant 
personal encounters with Heffernan, who clearly detests all gay men. "You blokes 
[homosexuals] have got a lot to answer for," he told Greig on one occasion.

Latham, we now learn, warned the government a year ago that Heffernan was 
"using his office resources [as Cabinet Secretary] to keep files and run vendettas 
against homosexual citizens." He said that Heffernan was "quite sick" and "needed 
help." None of this appeared to bother Howard, who still claims Heffernan as a 
close friend.

It was clear from Howard's initial response to Heffernan's speech that, while he 
may not have known of it in advance, he was not going to lose any sleep over this 
slander of a senior judge. Howard, like Heffernan, lives in a simple ideological 
world of goodies and baddies, virtuous conservatives and wicked Laborites. He 
dislikes activist judges in general and the High Court in particular.

It should have been no surprise that Michael Kirby was in the line of fire from 
Howard and his attack-dog Heffernan. His first problem is his CV. He was 
appointed as a Deputy President of the Conciliation and Arbitration Commission in 
December 1974, a Judge of the Federal Court in 1983, President of the NSW Court 
of Appeal in 1984 and a Justice of the High Court in February 1996. 

In other words, Kirby received all his judicial appointments from Labor 
governments -Whitlam, Hawke, Wran and (worst of all) Keating. As far as 
Howard is concerned, this makes Kirby a "Labor judge," and fair game for 
political attack, as other Labor judges such as Lionel Murphy and H V Evatt were 
in the past. 

In fact, Kirby's political views are somewhat obscure. He is a strong supporter of 
human rights, but on the other hand he is an Anglican and a monarchist, which 
certainly marks him out from most people on the left. He is something of a judicial 
conservative on states' rights issues. On the High Court, he is less obviously a 
traditional left-wing Labor judge than, say, Justice Mary Gaudron.

Kirby's real crime is of course that he is openly gay. This fact was well-known for 
many years, but he chose to make no public comment about it until he included the 
name of his long-time partner, Johan van Vloten, in the 1999 edition of Who's Who 
in Australia. This made Kirby the most highly-placed openly gay person in 
Australia - a dangerously exposed position.

For the homophobes, having a gay man on the High Court was bad enough, but 
having a campaigning one was intolerable. Since coming out Kirby has become a 
more outspoken advocate of gay and lesbian rights. In February 2000, for example, 
he spoke at St Ignatius College, a Catholic school in Sydney, about his own 
experiences as a gay schoolboy, and also criticised the Catholic doctrine that gay 
men and lesbians should be celibate. This speech was singled out for criticism by 
Heffernan.

Until Monday's revelation about the ComCar docket, the issue was essentially a 
contest of reputation and character between Kirby and Heffernan. Kirby is one of 
Australia's most respected judges and legal scholars, and a man with an 
international reputation for human rights activism on a wide range of issues. 
Heffernan is a farmer from Junee, a second-rank politician and a man with a well-
documented hatred for homosexuals. With due respect to farmers from Junee, this 
was not much of a contest.

By Tuesday the issue had become clearer. Heffernan had built his case against 
Kirby on sand. His star witness - in fact apparently his only witness - was one of 
the dubious "former rent boys" whose evidence had been discredited during the 
John Marsden defamation trial. His documentary evidence was a ComCar docket 
that appeared to be a forgery. 

At this point Howard, who has been in politics long enough to know a loser when 
he sees one - threw Heffernan overboard. But the fact is that Howard did not 
condemn Heffernan's original assault, and indeed added to it when he gave more 
details in the House of Representatives - again protected by parliamentary 
privilege - about Kirby's alleged actions. He also said that it would not be 
necessary to prove Kirby guilty of a criminal offence to have him removed from 
the High Court bench.

The real issue left by the Heffernan-Kirby affair is John Howard's willingness to 
condone a blatantly homophobic assault on an openly gay public figure, launched 
on flimsy evidence, for essentially political reasons - the Coalition would love to 
remove Kirby from the finely-balanced High Court bench so they can appoint a 
conservative to replace him.

Howard said this week that he was "conservative but tolerant" on the issue of 
homosexuality. It is true that he does not employ the kind of crude homophobia 
that we recall from the days of, for example, Sir Joh Bjelke-Petersen. But his 
behaviour during the Heffernan affair suggests that he is still very tolerant of 
homophobes on his own ranks.

Michael Kirby on homophobia

Homophobia is " the conduct of cowards," the High Court judge told an audience 
of Catholic students. Gay men and lesbians "exist in all walks of life." Celibacy is 
"seriously unnatural" for most people. The churches should apologise for their 
history of homophobia. No wonder Senator Heffernan was offended.

In February 2000, not long after he come out as gay by naming his long-time 
partner in Who's Who, Justice Michael Kirby visited St Ignatius College in Sydney 
and spoke to the assembled senior students. This was the speech singled out for 
criticism by Senator Bill Heffernan in his attack on Kirby in the Senate last week.

Kirby - who is a practising Anglican - said that in some matters of social justice - 
Aboriginals, refugees, the poor and unemployed, alcoholics and the sick and dying 
- the churches had "an admirable record" of defending human rights. "They stand 
up like heroes," he said. "But in other matters," he went on, "the role of women, 
the predicament of drug dependant people and sexuality - they have a long way to 
go."

The Anglican and Catholic Archbishops of Sydney had reminded their 
congregations of what they say are church teachings that homosexual acts are 
contrary to moral law, Kirby said. "Of course I am not competent to engage with 
these reverend men in theological debate. But I can give you another point of view, 
drawn from my own life's experience."

Kirby said then when he was at school in the 1950s no one spoke about 
homosexuality. When he realised he was gay, he also discovered that "my church, 
my school friends and my society expected me to be thoroughly ashamed of 
myself. I was supposed to keep totally silent and to completely hide my feelings." 
This, he said, was "a lonely time of denial ."

Kirby then made what was obviously a heartfelt declaration. "I want to tell you that 
gays and lesbians exist, as they always have, in every walk of life. They are no 
better and no worse than other people. They have most of the same problems and 
joys and worries and hopes as heterosexual people have. Many have long term 
partners, as I have. Nowadays more and more are unwilling to go along with the 
game of shame."

Directly addressing his young male audience, Kirby said: "You should reject 
poofter-bashing and harassment of people you think might be gay. This is the 
conduct of cowards. These are attitudes that, in earlier times, led to the burning of 
heretics, the Holocaust against the Jews, the Pink Triangle of the Nazis and the 
genocide in Cambodia and East Timor. Such wicked conduct is only stopped when 
ordinary people reject the philosophy of 'don't ask, don't tell' and fully accept their 
fellow human beings in all of their diversity."

The Christian churches, Kirby went on, had been wrong about other matters in the 
past, as when they had persecuted Galileo (for saying that the Earth goes round the 
Sun.) "Often it takes the churches a long while to see the errors of their ways. 
Usually the churches belatedly apologise." Eventually, he said, the churches will 
"ultimately recognise their mistake" in condemning homosexuality as an "intrinsic 
evil." 

"I for one deny that I am 'intrinsically evil'," Kirby said. "Boringly enough, I think 
I am quite a good man. I respect and uphold the human rights of others. I do not 
think it is too much to expect that others will respect my human dignity for who I 
am."

Turning to the attitude of some churches, that it is acceptable to be homosexual 
provided one remains celibate, Kirby said: "To demand a life of celibacy of the 
millions of homosexual people in this world is not only totally unrealistic. It is 
completely unreasonable. Indeed, for most of humanity it is seriously unnatural. It 
amounts to a rejection of an important aspect of personhood which is impossible 
and wrong to demand of all but a very few who are suited to the celibate life."

Few if any gay and lesbian people choose their sexuality, Kirby said. "It is like 
your gender, your skin colour or being left-handed. From the earliest days of 
puberty, you just know that is how you are. And if that is how you are, that is how 
God meant you to be."

Christians, he said, have a duty to reject the notion that homosexuals and their 
sexuality are intrinsically evil. "Those who suggest that they are carry a very heavy 
moral responsibility for the hate crimes, the bashings, the denigration, the family 
rejections, the shame, the suicides, the despairing exposure to HIV and the lonely 
denial that they inflict on other human beings."

For both gays and straights, Kirby concluded, "there is a need to stand up bravely 
together on these issues and to confront hatred and error. In due course the 
churches will get it right. Let us hope that we do not have to wait too long for this 
apology."