Subjects: Justice Kirby; Zimbabwe.
E&OE...........
O';BRIEN:
Prime Minister, do you have any regrets about the way the Justice Kirby issue has evolved?
PRIME MINISTER:
Oh, I don';t like it at all. It';s a difficult, sensitive issue. It';s an unpleasant issue and I suppose, with the best of all wills, one wishes one didn';t have to deal with something like this. It';s very hard. I didn';t know Bill was going to raise it when he did. He did talk to me about this, I mean, he's talked to a lot of people about it, he feels very strongly.
O';BRIEN:
How many times did he talk to you?
PRIME MINISTER:
Oh, he would have talked to me a number of times about it.
O';BRIEN:
Over a long period of time?
PRIME MINISTER:
Over a period of time, yes. And the last time he spoke to me was last year, probably in October, or September or October, but the actual speech he delivered was without warning. But it having come into the public domain I have to try and deal with it. There';s no set precedent for dealing with something like this and I';m trying to do it in a way that';s fair, fair to the Judge, but also recognising that in this world when something like parliamentary privilege is available people do raise issues and you do have to try and work your way through it in a fair and proper fashion. But I don';t find it very easy and I certainly don';t like it one bit.
O';BRIEN:
You';ve said that when Senator Heffernan did raise it with you that you counselled him not to misuse parliamentary privilege. Did you say to him I';d rather you didn';t use it, I don';t think it';s appropriate on this occasion or did you leave it entirely as a matter for his judgement?
PRIME MINISTER:
Oh, I didn';t…he would have been in no doubt that I really didn';t want him to raise it but Bill felt very strongly about this and, I mean…
O';BRIEN:
Did you say to him there are other alternatives, there may be other ways of dealing with it?
PRIME MINISTER:
Look, Kerry, Kerry it was some months ago. I don';t remember the exact words but I think if I were to ask him again he would agree that it';s not something that I was very keen on him raising to put it at its very least.
O';BRIEN:
But would you agree that there were perhaps other ways of dealing with it?
PRIME MINISTER:
Well, I think it's hard to answer that question until we know the full working out of it.
O';BRIEN:
You';re now talking about the wisdom of having a protocol, some sort of protocol for dealing with matters like this, involving the allegations against the Judiciary. But, of course, that option has been sitting there for you to consider for 18 months now with the recommendations of the Law Reform Commission and, presumably, was sitting there, if not in the front of your mind then in the back of your mind, when Bill Heffernan was raising these concerns. Did the two not kind of come together in your head? Why have we waited until now, we had this controversy on the plate to raise that as a matter for consideration?
PRIME MINISTER:
Well, perhaps one the reasons that it didn';t is that I perhaps had hoped that the matter would not be ventilated in Parliament. But if you';re making the criticism that we perhaps should have responded 18 months ago, that';s a valid criticism and I can';t argue with that. In my view this is not the first time a Judge has been attacked under privilege. It happened 20 years ago when Peter Walsh attacked Sir Garfield Barwick under parliamentary privilege and Mr Justice Callanan was attacked by the Labor Party quite recently and they, in fact, proposed that three Judges sit in judgement on him.
O';BRIEN:
And why didn't you take that up? You';re taking it up now, in effect, as a possibility.
PRIME MINISTER:
Well, we thought those particular allegations were quite groundless.
O'BRIEN:
But as a process.
PRIME MINISTER:
Well look, Kerry, if you're saying that we should have before now had a process the answer is, yes, we should have. I have to, I agree with that.
O';BRIEN:
Do you have any idea, I mean, Bill Heffernan took these matters to the police, I believe, in 1988…in 1998. Do you have any idea why it';s taken him 1999, 2000, 2001, 2002 to suddenly rush into the Parliament and do what he';s done?
PRIME MINISTER:
Well, I think you should talk to him about that. I can';t…
O'BRIEN:
You didn't ask him [inaudible]…
PRIME MINISTER:
Well, obviously whenever he';s raised the matter with me I';ve discouraged him from raising it in Parliament, obviously, I';ve made that clear, and one of the reasons is that because of the sensitivities of privilege but, in the end, everybody has a right, if they feel strongly enough, they have a legal right to use parliamentary privilege. Now, in the end, if these allegations are demonstrated to be completely without any merit or foundation then he will owe the Judge an apology, an unreserved one, and I will expect it to be delivered.
O';BRIEN:
I';m not sure whether you';re aware of the fact that Laurie Brereton, the former Shadow Foreign Minister, has made a made…has given a press conference this afternoon in which he has said that the Commonwealth car docket that appeared in the Sunday papers has his name on it and that if you look at the date on that, which I think was April 2, 1994, he';s checked his diaries which show that he was away, out of Sydney on holidays at that time and he';s raising the issue as to whether that is, in fact, a valid document and what action Senator Heffernan has taken to verify that it was a valid document. I would imagine you';d be concerned, wouldn't you, to know that Senator Heffernan had taken those kind of measures before he went with this?
PRIME MINISTER:
Well, I';d be concerned if anybody uses a document in anyway where they have grounds to believe that that document is in any way inadequate. But I was briefly told of the Brereton interview before this interview. As to the detail of it I, I can';t say more than that. I'd also make the observation that in the initial speech made by Senator Heffernan a reference I don';t think was made to the document that appeared in the papers on Sunday. But, I mean, you really have to ask others that. I didn';t provide that document to the Sunday papers and I';m not standing behind that document.
O';BRIEN:
When you…when you responded in the first instance in the Parliament last week you seemed to be saying that this was going to be a matter for judgement by the police but by Friday you had raised, I think, the issue, a further issue, which took it beyond just a question of how the police might react to this, and you used the term proven misbehaviour by a Judge. Now, it seemed to some, that's the way it's been interpreted, that you, in fact, escalated the issue by doing that.
PRIME MINISTER:
Well, I don';t think that';s a fair comment because in the end the question of whether somebody should remain on the High Court is determined in accordance with the provision of the Constitution that talks about proved misbehaviour and I was stating the obvious in doing that. But the matter is still under consideration. I mean, the Labor Party itself doesn';t believe that the sole test of proven misbehaviour is criminal conduct otherwise they would not have proposed what they did in relation to Ian Callinan because Ian Callinan, whatever they said about him, they didn't say he'd committed any criminal offence. So, I was really just stating the obvious there but it';s still under process, if I can put it that way, and I can';t really say much more than that.
O';BRIEN:
Have you asked Senator Heffernan if he had fresh evidence, as he says, to support his allegations, why he didn';t take that information to police before he went to the Parliament?
PRIME MINISTER:
Well, Senator Heffernan, when I have taxed him about this Senator Heffernan said, look, you know, I feel very strongly about it and I';m sorry I didn';t tell you in advance but I just felt that I had to make the statements because I didn't feel I was getting anywhere.
O';BRIEN:
And you didn';t say to him, but if you've got fresh evidence, why on earth didn't you go to [inaudible]
PRIME MINISTER:
Well, Kerry, I have said a lot of things to him since he made that speech and I don';t really intend to go into the detail of it.
O';BRIEN:
Can we look now at Zimbabwe? You';re about to head over to London for those talks with your two co-committee members. Do you really feel you';ve got any chance of getting an outcome that will be acceptable in the eyes who believe that the Zimbabwe election was not free and fair?
PRIME MINISTER:
I think it';s going to be very difficult. The difficulty is self-evident. The other side of it, of course, is that the eyes of the world will be trained, the eyes of the Commonwealth will be trained on the three of us. We can';t hide behind the fog of a collective meeting. Each of us has to justify not only to our own people but to the Commonwealth community a stand we take in the face of the Commonwealth Observer Group report, which is pretty strong, very strong. And if the Commonwealth stands for anything it does stand for a common belief in democratic process and democratic principle. And the three of us have to be quite fair dinkum, to use an Australianism, in applying those principles to this situation.
O';BRIEN:
Given how strong that report was about the election, what do you think is an appropriate response by the Commonwealth if it';s to be credible?
PRIME MINISTER:
I';m not trying to dodge taking a position, I just don';t think I should state in advance what I';ll be telling my colleagues.
O';BRIEN:
But you've said that this is a test for the Commonwealth.
PRIME MINISTER:
Yes it is.
O';BRIEN:
How do we apply the benchmarks to that test?
PRIME MINISTER:
Well, the benchmarks are publicly available. The benchmarks are the Harare Declaration and the Millbrook principles and in summary they say we should all be democracies and we should have free and transparent electoral processes and we have a report from the Commonwealth Observers Group. And what ideally the three of us should do is to sit down, have a look at that report, have a look at the Harare and Millbrook principles and reach a conclusion. And I';ll obviously be following that thought process in the discussions that I have with the two presidents who…I understand where they're coming from, I understand the long, historical association between Zimbabwe and South Africa, in particular, and the importance of the frontline States such as Zimbabwe to South Africa during the struggle against apartheid. But, we';ve moved on from that and we are living in a world now where Africa needs help from the West and the rest of the world expects democratic processes to be respected.
O';BRIEN:
Regardless of that or even taking account of that historical link, do you find it regrettable that South Africa seemed to rush with such unseemly haste to send the deputy leader of the country to Zimbabwe to basically acknowledge President Mugabe's victory and that President Mbeki has described the outcome as legitimate?
PRIME MINISTER:
Well, seeing as the meeting between the three of us is so close I';ll pass on that.
O';BRIEN:
I think that says something in itself. What is at stake for the Commonwealth, when you say that the Commonwealth is going to be judged by this, what is at stake?
PRIME MINISTER:
Well, credibility. The Commonwealth has often been derided as an anachronism, why does it hang together? One of the things that has kept it together is the capacity over a period of time to bring democratic governance back to other societies, societies that haven't had it for a while and the fact if you do have this vast array of races and religions and different backgrounds with some common democratic bond and I think they are at stake.
O';BRIEN:
Well, I mean, if, in fact, you can';t get a credible outcome from this it';s going to mean nothing in that regard, isn't it?
PRIME MINISTER:
Well, I don';t want to answer a hypothetical question at this stage. I don';t think that';s productive. I';m going there with all the knowledge of the difficulties but also wanting to try very hard to get a credible outcome and believing that I';m dealing with the two men of principle and men who've suffered a lot for themselves for democracy. I mean, President Obasanjo was jailed, he went close to execution, he knows what it';s like, he';s been through the fire of achieving democracy in his own society, so I respect anybody greatly who';s had that life experience and, therefore, I owe him the courtesy of talking to him before making rhetorical declarations.
O';BRIEN:
John Howard, thanks for talking with us.
PRIME MINISTER:
A pleasure.
(ends)