Subjects: Senator Heffernan; Zimbabwe.
E&OE...........
LAWS:
Well it';s been another trying week for Federal Parliament with Bill Heffernan and his allegations creating a whole new set of issues for the Prime Minister. On the line from the Lodge is the Prime Minister. Good morning John Howard.
PRIME MINISTER:
Good morning, John.
LAWS:
Unemployment';s down, interest rates low, economy whipping along, it';s gotta be very frustrating that those achievements are constantly being swamped by other distractions, surely.
PRIME MINISTER:
Well it is, but it was ever that way, John, and I';m not sure that in the eyes of the public those things are swamped. The public has a great capacity to separate out something that it regards as important to the lives that it lives and it has a great capacity to form its own judgements as to what is important. I think the public listens to what it';s told by the media, they listen to what people like the Prime Ministers and Opposition Leaders tell them and in the end they accept and believe some of it and the rest of it they don';t and they make their own judgements about how their lives are affected. Now, [inaudible] in mind.
LAWS:
I do agree with that but I do believe that the same people to which you refer are also people who are very much in favour of what is known in this country as a fair go. Do you think Michael Kirby';s had a fair go?
PRIME MINISTER:
Well it';s a difficult issue this and I';m on record and I';d repeated that…of saying that until this issue plays itself out it';s hard to make a judgement. I do accept that in the last resort Members of Parliament have a right to use parliamentary privilege, however anybody who uses parliamentary privilege to talk about individual conduct of another citizen ultimately has to justify what is said. Now, that justification must inevitably take place in a variety of ways but it';s a difficult issue this.
LAWS:
I think probably one of the most difficult.
PRIME MINISTER:
It';s one of those things that somebody in my position has to work his way through, trying to be fair to everybody, everybody in this country, High Court Judges included, are entitled to the presumption of innocence, everybody';s reputation is important to them and everybody has the right to be angry if their reputation is inaccurately or unfairly besmirched. Now, that';s something I think all of your listeners would agree with. I am a known, of course, close colleague and friend of Bill Heffernan';s and I believe in that old adage that you should never be expected to explain or apologise for your friendships but that doesn';t mean to say I agree with everything he does, it doesn';t mean to say that his views on every issue are the same as mine, clearly they're not but he feels strongly about certain issues. He made a speech the other night very much off his own bat and that issue is now being, as it were, played out and at this stage I can';t really say a great deal more than that I';m trying to handle this thing correctly, I';m trying to respect the rights of everybody involved in this including the right of a Member of Parliament, if he or she feels strongly enough, to raise something under parliamentary privilege but equally in the knowledge that if what has been alleged is demonstrated to have been completely untrue then you are accountable for that and we';re all accountable.
LAWS:
Okay, can I say this to you, you mentioned the use of parliamentary privilege as a last resort, in this case apparently it wasn';t a last resort.
PRIME MINISTER:
Well, I don';t know about that. I mean, and this is very much a subjective thing because parliamentary privilege is there for a good reason, it is democracy';s ultimate safety valve.
LAWS:
I understand that.
PRIME MINISTER:
And it should never be abused but equally it should not be compromised or taken away. Now, the question of whether parliamentary privilege is abused is often a very subjective judgement. And I';ve, over 28 years in Parliament, I';ve thought parliamentary privilege has been abused on both sides of the House on a number of occasions and, of course, as you will know this is not the first time parliamentary privilege has been used to attack a High Court Judge. Senator Walsh, many years ago, used parliamentary privilege to attack the late Sir Garfield Barwick and, you know, very savagely. Now, I';m not, you know, I';m just reminding listeners of that in case anybody thinks that it';s absolutely unprecedented but it is a serious thing and I think Senator Heffernan is aware that when you do that you take upon yourself the burden of accountability to your parliamentary colleagues and to the Senate in the sense that if you are seen to have done it without any sense of responsibility, if you';ve done it capriciously and without good reason or good cause then…
LAWS:
Would it not be irresponsible to not do it as a last resort?
PRIME MINISTER:
Well, that once again is a very subjective thing.
LAWS:
Well, what do you think?
PRIME MINISTER:
Well, it';s very difficult for me to make…I';m not going to try and make a judgement in this case.
LAWS:
Okay, but can I say…
PRIME MINISTER:
Can I tell you why I';m not going to make a judgement in this case? I don';t have first hand knowledge of the circumstances.
LAWS:
Okay, but you said in Parliament the other day that Bill Heffernan had done this as a last resort, you said that. Now, he didn';t do it as a last resort because the day after he made the statement was the day that he then sent the letter requesting the case be opened again to the Commissioner in New South Wales, who to my knowledge still hasn';t got the letter.
PRIME MINISTER:
Well, what I was referring to there was the fact that he had previously raised the matter with the police, that';s the point I';m making.
LAWS:
Yeah, but he had previously raised it some years ago.
PRIME MINISTER:
Yeah, but he'd still previously raised it. I mean, the point I was making there, and I';m not, I';d have to check exactly my words but…
LAWS:
Well, your words were that he used it as a last resort and the truth of the matter is that he didn';t use it.
PRIME MINISTER:
[Inaudible] use it as a first resort but look, if I said that, well, I said it but it would have been in the context of it having been previously raised. But, John, I accept this as a serious, difficult, sensitive issue. It's not easy. I'm trying to work my way through it in a fair and proper fashion. I don't want to talk about the detail of it. I don't think that's appropriate.
LAWS:
Look, can I say this to you, irrespective of the outcome of this Michael Kirby has been forever tarnished, irrespective of the outcome.
PRIME MINISTER:
Well, that is a view that a lot of people will hold.
LAWS:
Don't you have it?
PRIME MINISTER:
I can understand that and that is a view that a lot of people will hold and I understand…
LAWS:
Do you hold it?
PRIME MINISTER:
Well, I have to…when you say irrespective of the outcome, I really don't want to because of the position I hold and the position I'm in and that every single thing I say about this is analysed both impartially and also maliciously, words can be used against me. We are involved in a very difficult process, clearly very serious allegations have been made and I can understand the anger and the fury of anybody in relation to whom these allegations are made if those allegations have no substance at all, I can understand that.
LAWS:
But do you believe that…
PRIME MINISTER:
But I really am not going to get…when I'm in a position of having to make, myself, judgements that might determine the way in which this thing is handled, I am not going to start making value judgements on the run. I think I have to keep my counsel on that, I really do.
LAWS:
I agree with you, though, I agree with you.
PRIME MINISTER:
I am, as you know, a very communicative person and somebody who tries to answer questions directly but you have to accept from me, John, because I know you do, that there are occasions when somebody in my position has to choose his words very, very carefully and I am doing that because this is precisely one of those occasions.
LAWS:
Okay, and I do understand that and I do respect that. Is Bill Heffernan somewhat obsessed with homosexuality?
PRIME MINISTER:
Well, that's a question he's got to answer. Look, Bill has strong views and passions, like all of us, he feels very strongly about certain things. I have always found him an immensely likeable and decent person. Like all of us he's got a lot of flaws, he makes mistakes, his judgement is not always correct but when you've got a colleague and a friend you take the good with the bad. I've got a lot of flaws, I make a lot of mistakes but I still hope I retain the friendship of people to whom I've been close despite those errors.
LAWS:
Did you make a mistake when you didn't tell Bill Heffernan not to go ahead with this?
PRIME MINISTER:
Well, Bill spoke to me about it as I've indicated before and I counselled him then not to misuse parliamentary privilege. Now, I've got nothing really to add to that. I was asked this question in Parliament last week. People will have their own views. I mean, there's plenty of people out there that are ready to tell me that I make a mistake with just about everything. I don't know that going to, sort of, get into a confessional mode to add to the long, long list.
LAWS:
Well, I'm certainly not going to tell you you make a mistake…
PRIME MINISTER:
No, I know you're not, I'm thinking of others, I'm thinking of others who are less impartial.
LAWS:
Okay, but did you discuss this at some length with him?
PRIME MINISTER:
John, I discussed it with him and I counselled him not to misuse parliamentary privilege. I'm not saying any more about those discussions.
LAWS:
Okay. Yesterday I talked to the President of the Bar Association, Brett Walker, who was surprisingly outspoken in what he had to say in relation to the issue. I'd just like you to hear this piece.
Brett Walker: Of course this is sinister. It's intended to be yet another step in this man's thoroughly offensive and deliberately cruel attack on anybody who is homosexual.
John Laws: Do you think he has support within Government ranks?
Brett Walker: Oh, I think that Government as any section of the community includes people who are poofter bashes.
How does that sort of statement affect you Prime Minister?
PRIME MINISTER:
Well, it is a view that some people hold. I regard myself as having a tolerant but conservative view about homosexuality. I don't think somebody's homosexuality should disqualify them from a position on the High Court, I don't think it should disqualify them from holding any position. That is not my view. Some people sort of have stereotypes of me. I'm a person who I think has a, can I put it this way, conservatively tolerant view of that. I certainly don't seek and I don't think anybody can find instances in my life where I have in any way discriminated against a person on the grounds of their homosexuality. That doesn't mean to say that I publicly endorse, like a lot of other politicians do, the gay mardi gras. I have other reasons for not doing that, but that's a separate matter. I mean, I think if Mr Walker was implying a sinister intent on the part of the Government then he's wrong and I repudiate that and I don't…I won't accept that there's been any intolerance displayed towards homosexuality.
LAWS:
It seems to me that the Opposition holds a similar view to Mr Walker.
PRIME MINISTER:
Well, that's a matter for them, that is a matter for them. Look, I'm not going to sort of make a commentary. I don't really want to get in to, beyond stating my own view, I don't want to get into a debate about this because I don't think that is the issue. I mean, what people are trying to do is to sort of turn into say, well, what's really happening here is the Government is against homosexuals. Now, that is not the issue and those who seek to turn that into the issue are distorting and misrepresenting what has happened. I think you know that and I think a great many people who've followed this carefully know that and therefore if that was the intent of Mr Walker, well, I totally reject it.
LAWS:
It's also been described by some as a diversionary tactic.
PRIME MINISTER:
Oh, you've got to be joking.
LAWS:
You've heard it, though, haven't you?
PRIME MINISTER:
Well, I've heard it but, I repeat, you've got to be joking. I mean, you'd have to be joking.
LAWS:
Well, they had to be joking.
PRIME MINISTER:
Well, the answer is, no, it is not. That implies that in some way it was cooked up, the speech was cooked up in the highest levels of the Government. Now, that is not true, absolutely not true. I knew nothing about the speech until I'd been told it was delivered.
LAWS:
But you did know it was going to be made.
PRIME MINISTER:
I didn't know it was going to be made.
LAWS:
You didn't.
PRIME MINISTER:
The speech?
LAWS:
Yeah.
PRIME MINISTER:
No.
LAWS:
You didn't know that Bill Heffernan was going to bring this up in the Senate?
PRIME MINISTER:
I had no warning that he was going to bring it up, no, unless you're trying to construe the fact that we discussed the matter earlier. But I was not told by him or given a warning by him that he was going to make this speech.
LAWS:
Okay, Prime Minister you've said to me and obviously I accept it that you don't believe that homosexuality should stop a man from being a High Court Judge, however, would the behaviour of the sort suggested by Bill Heffernan, would that stop a man from being a High Court Judge?
PRIME MINISTER:
Look, John, let me answer it this way, I'm not going to give an answer to a question that implies a judgement on the allegations that Bill Heffernan has made against Michael Kirby. I just don';t think that is fair, it is not right and it will be used against me. Clearly people, your listeners will know that any kind of misbehaviour involving people under age would disqualify people in a whole lot of positions, not just being a High Court Judge and people know that. But I really don't want to get into a value judgement. I have made an observation about the rights of people whose sexual preference is homosexual. I hold to that view, I've held to that view for a long time. Now, a person is qualified to be a High Court Judge under our Constitution unless they';re guilty of what';s called proved misbehaviour. And a proven misbehaviour under the constitution can take many forms and cover a lot of conduct. It';s not defined. It doesn';t necessarily have to be behaviour of a criminal kind. But I don';t want to stray further and I certainly don';t want to make a comment upon the specific allegations made by Senator Heffernan, less they be construed as my making a value judgment on this particular issue which I don';t think I should.
LAWS:
You did tell Senator Heffernan not to abuse parliamentary privilege. He abused Parliamentary privilege don';t you think?
PRIME MINISTER:
Well the question of whether that is a fair claim or not defends on the ultimate working out of this thing.
LAWS:
So let's look at it a bit further because we must. If it is ultimately proved that the claims made by Senator Heffernan turn out to be true then he will be vindicated in his use of parliamentary privilege. If they turn out not to be true what happens?
PRIME MINISTER:
Well that is a hypothetical issue at this stage. I can only repeat what I said yesterday and that is that he';s ultimately required in a broad forum of public opinion to justify what he';s done. And I';m not going to start laying down benchmarks for that because it will vary according to the views of different individuals and we are all accountable ultimately in public life, we are accountable according, we';re all accountable to the law and we';re all accountable to the rules and the mores and the codes of behaviour of the profession in which we participate. Now that applies to all of us. No matter what we do and people will make judgments, some of those will be critical and some of those will be supportive and understanding and the political process may be imperfect and it clearly is but over a period of time it works its way out and people who make mistakes ultimately are marked down by their peers and that can be the harshest judgment of all in public life. But equally many actions of people are not seen in black and white terms, there are some who will forever think they';ve done the right thing and others who will forever think they';ve done wrong thing. But I';m not going to start predicting in advance what judgment should be made about Senator Heffernan, when this matter has not as yet worked its way through.
LAWS:
Do you respect the High Court?
PRIME MINISTER:
Of course.
LAWS:
Do you respect the Bar Association?
PRIME MINISTER:
Yes, I don';t always agree with it, I don';t always agree with decisions made the High Court either but I respect the High Court, I think by and large this country over the years has been very well served, I think given our population it';s fair to say that in the last 50 years this country has probably had one of the strongest, if not the strongest final appeal court benches in the English speaking world. I think since World War II Australia has seen people like Sir Owen Dickson for example have produced some of the greatest jurists that have ever sat on any court in the world. I think we have been very well served by the High Court but like any other institution it makes errors, it';s not infallible and of course it';s changed its attitude on a lot of issues over the years.
LAWS:
Just before we conclude I would like you to hear just a little bit more of what Brett Walker had to say to me yesterday, I';m not sure you';ll particularly like this piece but I';d like you to hear it and I want your comment on it.
WALKER:
“I think the Prime Minister is quite immune to any criticism based upon on the rule of law. I think he has no instinct for the rule of the law at all. I think he';s hero Sir Robert Menzies would be ashamed at this kind of conduct”.
LAWS:
What, how do you respond to that?
PRIME MINISTER:
Well he';s wrong, I think that connotes a complete misunderstanding of the way in which I have behaved and I haven';t the faintest idea what attitude Sir Robert Menzies would take, he';s dead. And I mean people who invoke the names of deceased people to condemn somebody who';s still alive do so in the sure and certain knowledge that their indication cannot be finally disproved because the person in question in dead, I mean that';s a fairly old and cheap trick. I mean what disrespect for the rule of law has been shown on this particular occasion? Nobody is disputing the right and the role and the duty and the power of the High Court to adjudicate matters. Our system of Government rests upon a separation of powers, it';s rests upon the parliament making the laws and parliament controlling and producing the executive and the courts having the power to interrupt those laws. If parliament wants to change the law as interrupted by the courts that is not improper, that is not a disrespect for the rule of law. That is the working out of the system and I don';t think there';s anything that this Government has done, or I have done as Prime Minister, that shows a misunderstanding of the rule of law. I know that people have been disappointed because we haven';t accepted the law as interpretted by the courts in a number of cases involving for example native title but that is our right. It has always been thus. The long history of the interaction between Parliament and the courts is that Parliament passes a law, the courts interpret it in a particular way, Parliament is unhappy with that interpretation, they then pass another law which gives expression to what the Parliament wants. Now there';s nothing disrespectful in that. That is how our system of government works. Now I think in defence of the political arm of government we have had a number of cases over recent times of judges expressing their views on what can only be regarded as party political issues. There was a time when judges never gave speeches. I';m not saying you should go back to that but I think just as we as legislators and I as a Prime Minister must always be respectful towards the courts. Equally the members of courts must understand that once you go onto a court bench by that act you take yourself out of the political process. Now I think on a number of occasions that rule has not been respected by judges.
LAWS:
Do you think it';s not been respected by the judge to who we refer at the moment?
PRIME MINISTER:
Well look I';m not….once again I';m talking generically, I';m talking generically. But it';s a point that';s worth making. I mean Mr Walker presumes to say I don';t understand the rule of law. Well I would respectfully say I don';t think he understands the nature of the interaction between the courts and the Parliament. There has never been anything wrong or disrespectful in a government or a person in a position of political authority disagreeing with a court decision. What oughtn';t to happen is that the role of the court shouldn';t be undermined, the court should not be subjected to unfair attacks, and the security of tenure of judges should be respected because it';s upon that that the independence of the judiciary rests. Now there';s nothing that this government has done, and I mean I take this opportunity because I keep reading from time to time from a certain kidney of public opinion that in some way we';re trying to undermine the courts. I mean we have taken a different view in relation to what the law ought to be than the interpretations given by the High Court over the last few years in a number of sensitive areas such as native title and we have done it quite properly. We have sought to change the law. All governments who disagree with interpretation, the public policy impact of interpretations seek to do that. That doesn';t mean to say that I don';t respect the court. I have an enormous respect for the High Court, I have an enormous respect for the previous High Courts. I think they';ve varied in qualities as they no doubt think Prime Minsters have varied in quality.
LAWS:
How long does Senator Heffernan have to stand aside before this thing';s resolved?
PRIME MINISTER:
Well I can';t answer that question because I don';t know how long it will take to work its way out.
LAWS:
How will it work its way out?
PRIME MINISTER:
I';m not entirely sure. Obviously the view taken by the New South Wales Police will be relevant but there may be other things of which I';m not aware. It';s not a normal occurrence this and I therefore have to handle it in the best way I can, try to be fair to everybody but remembering that I';ve got a role in it and, you know, I';m aware that I';m subjected to a lot of criticism but that';s nothing new.
LAWS:
Have you had discussions with Senator Heffernan since the occurrence?
PRIME MINISTER:
Yes of course I have. That would be normal and proper.
LAWS:
I would have thought so. Does he feel any remorse?
PRIME MINISTER:
I don';t think it';s fair of me to talk about his state of mind. I don';t think that';s right. I think that';s sort of something that he';s entitled to have to himself and I';m not going to talk about that. I don';t think that';s right. That';s for him to speak about. It';s a very difficult issue and it';s certainly not one that I';d have sat down and worked out that I wanted.
LAWS:
I get that impression very strongly. Just quickly, on Zimbabwe, you're sitting on this three member panel. It';s become pretty clear the election';s been rorted. Will the Commonwealth now move to expel Zimbabwe?
PRIME MINISTER:
Well John I';ll be putting out a statement later today indicating that I';ll be going to London next Monday afternoon to have a meeting the following day with the President of South Africa and the President of Nigeria to discuss this report. The report that I';ve read is critical, very critical of the process. I';ll talk before I go, if I can, I';ll talk to the four Australian observers who';ve been there – that';s Alan Ferguson and Julie Bishop of the Liberal Party, and Kevin Rudd the Labor Shadow Foreign Minister and also our Chief Electoral Officer Mr Gray to get their views. And I';ll have a meeting London next Tuesday, I expect it will be, with President Mbeki and President Obasanjo of Nigeria. Now it';s not a very easy. I guess there';ll be a range of views. I don';t want at this stage to pre-empt that discussion by saying publicly what my view is expect to say that the remit we had from the Commonwealth meeting was that we should sit down and talk about this matter and consider the report against the background of the Mill Brook declaration and also the so-called Harare principles. What they basically say is that all Commonwealth countries should be democratic and elections in Commonwealth countries should be conducted in an open, fair and democratic fashion. Now that';s the remit the three of us have and if we are conscientious about our job each and every one of us has to have a look at the report and put that against the principles and reach a conclusion accordingly.
LAWS:
Okay, Prime Minister thank you for your time as usual.
PRIME MINISTER:
Thank you.
LAWS:
And I hope you have a nice weekend.
PRIME MINISTER:
Thank you very much.
[ends]