Senator COONEY (1:39 PM) —I want to talk in this MPI debate about a speech made here last night by Senator Heffernan because I think it is a speech that goes very much to the heart of the sort of system which we operate under; that is, a democratic system in which there are three branches of government. There is the parliament, which Senator Heffernan employed last night to put forward matters in which he believed and, I have no doubt, believed in sincerely; there is the executive, which administers the law; and there is the judiciary, which interprets the law. This is a concept that is traditional and which has been stated in this chamber on many occasions. Government is absolutely essential to this society, and it is proper that those three arms of government show the appropriate respect for each other. In other words, we are not going to get the sort of government we want in this country if there is not a respect between the three arms of government. That is particularly so in terms of the judiciary because it is a body that is dedicated to the doing of justice in this community.

If the beliefs that Senator Heffernan spoke to last night are true, there is a disastrous situation in the judicial arm of government in this country, and it is a matter of great and grievous concern. Because it is a matter of such importance, a matter that goes to the fundamental wellbeing of this society, then the belief that Senator Heffernan spoke to is a belief that must be founded very solidly on fact before it is published. Because you believe something, it does not make it true. Given the importance of this issue—and it is to be expected from anybody who uses the facilities of this chamber as they can be used—it is essential that that person is absolutely sure of his facts, not only in his own mind but also on the basis of the evidence that should underpin such a belief before he proceeds. Last night, Senator Heffernan quoted Chief Justice Murray Gleeson, who said:

That is true, and Senator Heffernan went on to quote other parts of the speech. What the Chief Justice said in that speech is absolutely true, and the parts that Senator Heffernan quoted are absolutely true. But just as judicial power is held on trust, so is parliamentary power held on trust. In here we have the ability to speak with absolute privilege. That is an ability that we should use but we should use it only in the most responsible way because it is a power that is held on trust.

Senator Heffernan in his speech addressed a series of matters. He says that he has evidence of the matters which he speaks to. The matters he speaks to are matters of the gravest kind. Those matters, if they are going to be advanced here, must be advanced only on the basis of the most convincing of evidence because they are matters that go to the integrity of government in this country and, after that, to the integrity of a judge's reputation.

So there are two matters. The first relates to the system itself, which must be preserved no matter what. The integrity of the system—the parliament, the government and the judiciary—must be preserved no matter what. But beyond that, every person is entitled to his reputation. We have here a judge who has been identified as Justice Kirby. He is a person who, until this time, has had the highest reputation—the sort of reputation that every judge of the High Court has and the sort of reputation that every judge of the High Court must have. If that reputation is to be justifiably lost, then it is not right that that justice should stay on in his or her office. It is because of that that the reputation of a judge, as with the reputation of everybody in this chamber, should be preserved unless it deserves to be lost. A person should not be traduced unless that evidence is there.

Senator Heffernan, who made this speech, has the conviction that what he said is correct. But that is not the test. A conviction does not make for truth. Evidence makes for truth. A speech like this, with great respect to Senator Heffernan, should not be made unless there is evidence not only that the senator possesses but that the senator can show to the community in a convincing fashion. It is not appropriate in a matter like this to get up and say, `I have the evidence' or else `I've been denied the evidence and I'm sure if I got the evidence I'd be able to prove what I have to say.' That is not the approach that should be taken. The approach that should be taken is to say, `Here is the evidence; here is the convincing evidence, which I now produce.'

The appropriate thing to do is to give this evidence to the appropriate authorities so that they may take the appropriate action. If the judge is unworthy of his office, then he or she must be removed, and that must be done by the proper processes, which is through the federal parliament of this nation. Unless that can be done, an attack should not be made on a justice of the High Court of Australia, which has a reputation around the world as one of the great common law courts, filled by people with great ability and integrity.

Where an attack is made on the system in the way I have explained, somebody should get up and state the sorts of things that I am stating as soon as possible. We have heard the speech by Senator Heffernan and the statement by the judge that this is false, that there is nothing to it, and those two issues should be put forward in this chamber as soon as possible, and that is why I am making this speech now.

I was able to be included on the speakers list today because Senator Mackay removed her name from the list, and I thank her for doing so. I rang Senator Heffernan's office a short time ago when it became apparent that I would be able to speak during this debate to tell him that I would be making this speech. He was not in his office. I apologise for not contacting him earlier but I thought that my chances of speaking during this debate today were slim. In any event, I have taken the opportunity to make these remarks.

In this world we must always hope that the right thing will be done. We must hope that people have integrity. We must hope that people are as they appear. Justice Kirby does appear as a great judge, as a person who has contributed greatly to this nation—through the Law Reform Commission and his work on two courts, through the various papers that he has produced, the lectures he has given and the work he has done generally. He has built up that reputation, and it is comparable to the reputation of the other judges on the High Court. That reputation has been traduced by somebody who has a great belief in what he says, but I keep repeating this point: it is absolutely essential to the way this society works that that conclusion which has been reached should only be reached after the most anguished of consideration and only on the basis of the most convincing evidence; otherwise the whole system gets out of skew. It is too easy to make a statement, to let that fly into the public domain and to do all sorts of harm because of that.

As I said before, if all of this were true, that would be a dreadful thing and something ought to happen. But this sort of statement should not be made, because of the fearful consequences, unless there are grave grounds for that happening. Neither the system nor the community should be affected in the way that it is by this, nor should the reputation of a person who, until this time, has had the highest reputation. There seems to be no reason at this stage why he should not continue to hold that reputation.