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Tonight - defence has no defence. It's acknowledged to me by the chief of the depeeps force, and
the Vice Chief of defence force and the commander of the academy that this was a very serious error
of judgment. A very serious error of judgment and regrettably, that now colours defence's handling
of this whole matter.

This is an organisation that is used to whenever they get into choppy seas conducting a review and
papering over the cracks, you know, cementing over these issues. This Program is Captioned Live

Good evening, welcome to 'Lateline', I'm Tony Jones. Critics called him the great dissenter for his
record on the High Court, but justy Michael Kirby is still regard bid many as one of the best legal
minds in the court's history. Now the verdict of his biographer is. He's described him as a
paradoxical mix of radicalism and conservativism, egalitarianism and a jump Kirby was a legal
reformer and traditional list, pushing a strong civil rights agenda but barracking for the northern
northern key. He was a man secretly and openly gay and he paid a price for his sexual in a
manufactured scandal. What of his future. of his future. Michael Kirby will join us in the
Stewartio firstly. Mending fences. Tony Abbott changes his visit to Rob Oakschott electorate.
Tobacco companies say they'll fight say they'll fight plain packaging legislation in the courts.
And the artist courts.

Smith brands Defence 'insensitive or stupid'

Smith brands Defence 'insensitive or stupid'

Broadcast: 07/04/2011

Reporter: Karen Barlow

Insiders say Defence Minister Stephen Smith has gone too far in refusing to support the head of
ADFA over the latest sex scandal.


TONY JONES, PRESENTER: There's no love lost between the Defence Minister and the Defence Force over
the latest sex scandal in the Australian military.

An enraged Stephen Smith has labelled Defence either insensitive or stupid over its treatment of an
18-year-old woman filmed and broadcast while having sex with another cadet.

The minister has also refused to support the head of the Australian Defence Force Academy.

Defence insiders and a senior Coalition Senator say the minister has gone too far and is treating
Defence unfairly.

A federal police investigation into the Skype scandal is now underway.

Karen Barlow reports.

KAREN BARLOW, REPORTER: Defence has found itself in another fight, but this one's on the home
front. It's dealing with the fallout after a private sexual encounter at the Defence Force Academy
was broadcast to other cadets.

ANGUS HOUSTON, DEFENCE FORCE CHIEF: I find the circumstances absolutely abhorrent, but I'm not
going to say anything more than that because I don't want to prejudice the very important AFP

KAREN BARLOW: But that investigation is only going ahead after the 18-year-old female officer cadet
involved went public.

On Defence advice the initial AFP investigation wilted.

TONY NEGUS, AFP COMMISSIONER: Defence didn't really fully comprehend the magnitude of what we now
know to be the case.

KAREN BARLOW: AFP investigators are attempting to speak to everyone involved. The AFP is examining
the issue of consent and the use of the internet.

TONY NEGUS: It depends on whether it's transmitted across a telecommunications device, for
instance, what the circumstances are around that, and as I said, until we speak to all of the
people concerned, I'm not prepared to say whether there is or is not an offence been committed
under ACT legislation.

KAREN BARLOW: The young woman who made the complaint was punished yesterday in a disciplinary
hearing on a separate misconduct matter, a decision that infuriated the minister.

STEPHEN SMITH, DEFENCE MINISTER: She was sentenced to five days restricted, which means five days
where essentially she had to remain on the academy and dock one day's pay.

KAREN BARLOW: After calling Defence either insensitive or stupid yesterday, the Defence Minister
today continued the attack.

STEPHEN SMITH: Because of the way in which this matter has been handled, we now have very
significant public issues so far as Defence's handling and conduct of this matter. That is entirely
coloured by a very, very serious error of judgment in parallel tracking this issue with other
disciplinary matters, and I've made that point very clear publicly and privately.

KAREN BARLOW: The Defence Association's Neil James says he's spoken to Defence chiefs and says the
minister is interfering.

NEIL JAMES, AUSTRALIA DEFENCE ASSOCIATION: Ministers just shouldn't do this. They don't do it in
civil police matters; they shouldn't do it in military matters.

KAREN BARLOW: The senior Coalition Senator Nick Minchin has defended the head of the Defence Force
academy, Commodore Bruce Kafer.

NICK MINCHIN, COALITION SENATOR: The minister himself knows that he's overreacted and I'm sure he
regrets what he's done.

KAREN BARLOW: This of course is not just one incident for the Defence Force; it's the latest in a
long list of scandals involving drunkenness, drugs, bullying and suicides. The culture at the
Defence Force is said to be changing, but the former Defence Minister Peter Reith says that's
happening too slowly.

PETER REITH, FORMER DEFENCE MINISTER: I'm not saying it's easy, of course not, but really I think
we've just waited far too long for the ADF to catch up with, basically, community standards.

KAREN BARLOW: He's backed the current minister, Stephen Smith.

PETER REITH: Look, I'm delighted to hear that he was furious. Someone should be furious.

KAREN BARLOW: While the battlelines widen, the female officer cadet who made the complaint is now
said to be on compassionate leave.

Karen Barlow, Lateline.

In release to the media says a two-year-old Afghan boy has died from injuries sustained last month
in a battle with insurgents. insurgents. The child was shot in the upper body during a gun fight in
Oruzgan Province. Defence says it is not clear at this stage who caused the boy's

Abbott targets Oakeshott's electorate

Abbott targets Oakeshott's electorate

Broadcast: 07/04/2011

Reporter: Tom Iggulden

Tony Abbott is trying to convince the voters who rejected the Coalition for Rob Oakeshott to come
back at the next election.


TONY JONES, PRESENTER: Tonight Tony Abbott was back in the seat where his ambition to lead the
nation went off the rails.

The town of Gloucester is a formerly staunchly conservative electorate that turned its back on the
Coalition and elected Rob Oakeshott and helped deliver government to Julia Gillard.

Tony Abbott dropped in on the voters of Lyne to try to convince them to go with him next time.

Political correspondent Tom Iggulden caught up with the Leader of the Opposition on the road.

TOM IGGULDEN, REPORTER: Tony Abbott's back on the road again, passing through the northern NSW
electorates of New England and Lyne, electorates that denied him the nation's top job. He says he's
here by coincidence.

TONY ABBOTT, OPPOSITION LEADER: And the best cycle route from Brisbane to Sydney takes you through
these areas.

TOM IGGULDEN: Still, you wouldn't be a politician if you didn't do some politicking on the way, I
suppose. And, look, this seat did cost you essentially government. You'd be pretty keen to get it

TONY ABBOTT: Look, you know, let's wait and see what happens at the next election.

TOM IGGULDEN: Nestled in prime agricultural land about 100 kilometres off the coast, Gloucester's
classic Nationals country. But the electorate of Lyne which includes Gloucester was part of the
groundswell that voted out John Howard in 2008, installing independent Rob Oakeshott.

He carried the seat again last year and delivered government to Julia Gillard in a hung Parliament.
It wasn't a popular decision with some, especially in Gloucester.

PETER CHANNEL, NEWSAGENT: What I hear over the counter is the fact that people are pretty much
opposed to the carbon tax. And as far as Oakeshott goes, well, what the media say is he's sold out
and that's pretty much how people read it, you know.

TOM IGGULDEN: So when you say over the counter, what sort of - at a rough poll, what sort of
percentage would be going with that view?

PETER CHANNEL: Oh, in this town it'd be pretty much 90 per cent probably.

VOX POP: And I don't like him because he reneged. I voted for Rob Oakeshott, but I wouldn't vote
for him again.

TOM IGGULDEN: When you say he reneged, how do you mean?

VOX POP: Because he went Labor, and I actually thought he was being on our side.

VOX POP II: You've read too many papers.

VOX POP: I do not.

TOM IGGULDEN: Why do you say that, that she reads too many papers?

VOX POP II: Because I think Rob's a good man.

TOM IGGULDEN: Relaxing at the local bowls club after his bike ride, Tony Abbott's hoping to channel
anti-Rob Oakeshott sentiment into his own political messages.

TONY ABBOTT: I hope that on one issue in particular both Rob Oakeshott and Tony Windsor listen to
their electorates and that's the carbon tax, because the message that I've been getting loud and
clear over the last few days is that country people think this tax is toxic and I think that if Rob
and Tony want to redeem themselves with their voters, this'd be a good place to start.

TOM IGGULDEN: Comments like that have put the Opposition Leader offside with Rob Oakeshott. He
stopped taking weekly meetings with Tony Abbott, saying the Opposition's undermining him while
trying to do business with him at the same time.

The issue goes back to the post-election period when the Opposition Leader's negotiating skills let
him down and former Liberal Mr Oakeshott sided with Labor.

TONY ABBOTT: I guess you can always do better, but I was as available as anyone could possibly be.

TOM IGGULDEN: But Mr Abbott will feel vindicated if Mr Oakeshott's decision to side with Labor
ultimately brings the seat of Lyne back into the Coalition fold.

TONY ABBOTT: In the end, really, it's up to electorates to judge their members and they do it to us
all the time.

TOM IGGULDEN: To an extent, Tony Abbott's preaching to the choir here in Gloucester. This is a town
still with strong ties to the National Party. If he's to win this seat back for the Coalition, its
voters in the urban centres closer to the coast like Port Macquarie who he'll have to convince.

Tom Iggulden in Gloucester for Lateline.

Low unemployment at risk from tax: miner

Low unemployment at risk from tax: miner

Broadcast: 07/04/2011

Reporter: Mark Simkin

Miner Anglo American is warning the carbon tax could cost jobs and billions of dollars in


TONY JONES, PRESENTER: The national unemployment rate has fallen below five per cent with nearly
40,000 new jobs created last month.

But as strong as the jobs market is, one the world's biggest miners is seeing a looming threat.
It's warned the Government's carbon tax will cost jobs and billions of dollars in investment too.

Chief political correspondent Mark Simkin reports.

MARK SIMKIN, REPORTER: It appears politicians and farmers have something in common: the use of

TONY ABBOTT, OPPOSITION LEADER: I haven't found any worms yet. John, do you want to say something?

JOHN: You've done well.

TONY ABBOTT: Have I done OK?

JOHN: Yeah, no, it's - a little bit of bullshit goes a long way.

TONY ABBOTT: (Laughs). In my business, yeah.

MARK SIMKIN: The Opposition Leader's gone bush to fight the carbon tax, and characteristically,
he's not sitting on the fence.

TONY ABBOTT: The Coalition is very much opposed to the carbon tax, but we certainly do believe in
taking strong action to reduce our emissions and to improve our environment.

MARK SIMKIN: He's not the only one with concerns about the carbon tax. Forbes Magazine considers
Cynthia Carroll the world's 14th most powerful woman. She flew to Canberra to talk tax with the
woman ranked 58th.

CYNTHIA CARROLL, ANGLO AMERICAN: I think the mining tax is behind us. I think it's been addressed
effectively. And so going forward I think it really is the carbon pricing policy.

MARK SIMKIN: In an echo of campaign's past, a global resource giant's warning the carbon tax
threatens billions of dollars of investment.

CYNTHIA CARROLL: We're looking at a $4 billion investment, we're looking at generating over 3,200
jobs and the potential is to halve the value of that investment.

MARK SIMKIN: The resources states are driving a jobs boom. Nationally, more than 37,000 jobs were
created in March, most of them full time. That sent the unemployment rate below five per cent.

CHRIS EVANS, EMPLOYMENT MINISTER: This is a really strong jobs result. It's great news that the
Australian economy is going so strongly.

MARK SIMKIN: The jobs growth was particularly strong in WA and in Queensland, which is rebuilding
after the devastating floods.

Two states representing one third of the population generated two thirds of the new jobs.
Government sources say next month's budget will address the two-speed economy and contain new
measures to push people off welfare and into the workforce.

Mark Simkin, Lateline.

Cigarette companies threaten trademark fight

Cigarette companies threaten trademark fight

Broadcast: 07/04/2011

Reporter: Steve Cannane

Two of the three big tobacco companies are threatening legal action against mandated plain
packaging for cigarettes.


TONY JONES, PRESENTER: As we reported last night, the Gillard Government has taken Australia a step
closer to being the first country in the world to have plain packaging for cigarettes.

Today the tobacco industry hit back with two of the three big tobacco companies threatening legal
action against the move.

But a leading trademark lawyer says their chances of success in the courts are close to nil, as
Steve Cannane reports.

STEVE CANNANE, REPORTER: These are the cigarette packets that have the tobacco industry scared: no
brands, no logos and big warnings, all on an olive green backdrop.

NICOLA ROXON, HEALTH MINISTER: Gone are the days where people can pretend that cigarettes are
glamorous. Gone are the days where gold embossing can imply luxury or pale green can imply that
they are light or safe.

STEVE CANNANE: The Opposition says it wants more evidence that plain packaging will work before
they support it.

PETER DUTTON, OPPOSITION HEALTH SPOKESMAN: We want to support sensible measures, but all we're
asking the Government, and I don't think it's unreasonable to do, is to produce the evidence that
shows that this is a better measure than, for arguments' sake, increasing the excise rate or other
measures that might be there that are evidence-based to reduce the smoking rates.

STEVE CANNANE: None of the three big tobacco companies would be interviewed by Lateline. But
earlier today, the biggest of the three threatened legal action against the Government.

SCOTT MCINTYRE, BRITISH AMERICAN TOBACCO: The Government is trying to take away our intellectual
property rights. If it were a big cola company or a brewing company and the Government tried to do
that, obviously they'd take this to court and that's the avenue that we'll be looking to take.

If the Government's tied up using millions of dollars to fight this and then potentially spending
billions of dollars of compensation of taxpayers' money, that's going to be very, very costly.

STEVE CANNANE: And a spokesman from Imperial Tobacco has told Lateline they too are prepared to
take legal action. "We would much prefer to engage with the Federal Government, but we will take
whatever measures are open to us to protect our valuable intellectual property and if that means
going to court, we will go to court."

But Mark Davison, one of Australia's most prominent trademark lawyers and a member of the
Department of Health's advisory group on plain packaging, thinks their prospects are low.

MARK DAVISON, MONASH UNI: Their prospects of actually winning any legal action are extremely small
and indeed almost close to nil.

STEVE CANNANE: One legal argument the tobacco industry might try and argue is that plain packaging
is unconstitutional, that the Commonwealth is illegally acquiring their trademarks.

MARK DAVISON: The problem with that argument is that there is no acquisition of property going on.
The Australian Government does not want the trademarks of the tobacco industry. It simply wishes to
regulate the use of those trademarks by the tobacco industry.

STEVE CANNANE: The second argument the tobacco companies might mount: that the legislation is in
breach of international trade agreements.

MARK DAVISON: The arguments relating to trademarks are based on the Paris Convention on Industrial
Property and the TRIPS Agreement, which is part of the World Trade Organization agreement. Both
those arguments really in the end depend on a claim that a trademark owner has a right to use their
trademarks. Now, the fact of the matter is that neither of those treaties gives such a right.

STEVE CANNANE: When asked about the tobacco industry's chances in the courts, Scott McIntyre had
this to say:

SCOTT MCINTYRE: Obviously, this morning they've just got the 90-odd pages and they're reviewing
that at the moment. But once they've reviewed that, they'll obviously come up with their arguments.

STEVE CANNANE: While the tobacco industry says there's no proof plain packaging will reduce
smoking, they're fighting it as if it's a threat to their market.

Steve Cannane, Lateline.

Kirby: There's plenty to do and I'll be there

Kirby: There's plenty to do and I'll be there

Broadcast: 07/04/2011

Reporter: Tony Jones

Former High Court judge Michael Kirby discusses an often controversial life dedicated to justice
and human rights.


TONY JONES, PRESENTER: Tonight's guest is former High Court justice Michael Kirby.

He is one of the Australia's most influential High Court judges. He's the subject of a new
biography called Michael Kirby: paradoxes and principles, and as the title suggests he's a man
whose life story seems to be full of both contradictions and strong principled stances.

Justice Michael Kirby is here with us now.

Thanks for being here.


TONY JONES: Do you agree with your biographer that you have a paradoxical mix of values?

MICHAEL KIRBY: I think he's a bit paradoxical too. You show a few symptoms of it as well. It's
human to be paradoxical, to have different streams in your life and have different points of view.
I mean, how boring could you get if everybody was linear and fitted into a nice neat box? I don't
do that and I don't think judges should do that.

TONY JONES: Fair enough. But looking back at you in your 20s, A.J. Brown writes, "This paradoxical
mix of radicalism and conservatism, egalitarianism and elitism produced an intriguingly complex
young man." I mean, I imagine you wouldn't quibble at that.

MICHAEL KIRBY: No, I think I did have elements of both. Don't forget they were rather conservative
times. That was the period of Mr Menzies, and if you wanted to get ideas over, you had to wear a
double-breasted suit. If you wore a double-breasted suit then people would take you more seriously.
I still wear a double-breasted suit every now and again.

TONY JONES: Well, Neville Wran regarded you when he first met you as something of a swell. So - I
mean, it does raise a question because Malcolm Turnbull recently talks about you dressing like
Robert Menzies, having a rather stiff manner, and I suppose the question here is: were you a young
man trying to reinvent yourself, a young man from a lower middle class background trying to
reinvent yourself as something different.

MICHAEL KIRBY: I don't think that's a fair thing. But, you know, I was in student politics and I
was trying to get the support and I had a lot of support and I was twice elected as president of
the Sydney SRC. I had a glorious career in student politics.

TONY JONES: You certainly did. Let's go back to those days, because in the early 1960s - it's
always quite fascinating to see what formed someone who becomes prominent in society. And you were
obviously taking cases in the civil rights movement, which was the nascent civil rights movement in
those days.

I mean, how strongly did that movement influence or mould your career and your life and your

MICHAEL KIRBY: Oh, very much so. And, you know, it's amazing to look back on the Council for Civil
Liberties at that time. Just about everybody on the committee ended up a judge. And it's not a bad
thing in a country like Australia that the more conservative elements in the legal profession that
tend to make it the judiciary is leavened by people like Justice Robert Hope, who was really quite
a liberal man and he was my colleague in the Court of Appeal later. He did those inquiries into
ASIO. And he was a true libertarian, and such people ended up on the courts, many of them appointed
by Neville Wran and Lionel Murphy, and I think that was a very good thing for diversity. Diversity
is a great strength, including in the judiciary.

TONY JONES: 1964, a university protest in Sydney supporting civil rights for black Americans, not
black Australians at the time but black Americans, and it turns very violent outside the US
consulate. It's basically in support of civil rights for black Americans. Twenty eight students are
arrested and you defend them and this seems to be the turning point in your early career as a
lawyer and your early career as a student politician as well.

MICHAEL KIRBY: Well I had a lot of success. I got all of them off. Not one of them was ultimately
convicted. And they didn't deserve to be convicted. It was a very violent police reaction. They
were not really very good days for police acceptance of the right of citizens to peacefully express
their points of view. But I think it's a bit unfair to say it was only about black Americans,
because very soon after that there were the so-called "freedom rides" in NSW. Chief Justice
Spiegelman was on the ride to ...


MICHAEL KIRBY: ... Moree. And I went up with Gordon Samuels and others as the barristers for - to
Walgett for a case that involved an attempt to stop Aboriginals going upstairs in the cinema there.
And though in a way we lost the case - they got bonds - ultimately, when the case was over, the
whole thing faded away and Aboriginals went anywhere in the cinema.

TONY JONES: Well, indeed, the first of those freedom rides to Moree was quite fiery. The townsfolk
came out, lots of them did anyway, hundreds of them in fact, and they spat upon the students who
were demonstrating with the Aboriginal people. They swore at them. Justice Spiegelman as he now is,
a young man then, was beaten to the ground.

MICHAEL KIRBY: Yes. Well, we forget sometimes what a long journey our country has come on in the
last 40 years. And some of the credit, not all of the credit, belongs to lawyers and some of it
belongs to civil society organisations like the Council for Civil Liberties and the student

And many of those people who were student politicians in those days went on to be very important
people in our country like Gareth Evans and John Bannon, Rob Holmes a Court, Darryl Williams - all
of those are my friends and they date back to those days and of course today Julia Gillard and Tony
Abbott were student politicians in their day.

You've got to watch those student politicians. You never know where they'll turn up!

TONY JONES: You certainly do - in the High Court even. Now, nearly half ...

MICHAEL KIRBY: Not too many in the High Court.

TONY JONES: That's probably true in fact. Nearly half a century later though, going back to the
Aboriginal issue, we're still very far from closing the gap between Indigenous Australians and the
rest of the community. I mean, do you regard the Aboriginal rights issues as unfinished business?

MICHAEL KIRBY: Oh, absolutely. And in fact the last case that I sat on in the High Court, Wurrigal,
which was the challenge to the intervention law in the Northern Territory was really unfinished

The Aboriginal plaintiffs were not allowed even to have their day in court. That was, I thought, a
very, very unfortunate decision and I said so in my reasons. And I think we will see more of that
business because we must have full equality in this country.

I'm sure with the intervention a lot of people were trying to do the right thing. But if it had
been to Italian Australians or Irish Australians or even Asian Australians there would have been an

TONY JONES: So you regard it as racist, the intervention?

MICHAEL KIRBY: I regard it as necessary to have a proper investigation of it including in court.
The people who made the original report emphasised how absolutely central it was to consult the
Aboriginal people. Don't go in there and just do what you think should be done because that's the
way of the 19th Century. Go in and consult the Aboriginal people.

Instead, eight weeks out from a federal election, there was a move in there and police and military
were given powers which were quite exceptional.

TONY JONES: Do you believe it was unconstitutional?

MICHAEL KIRBY: I did - well I thought it was arguably unconstitutional. That was all that was in
issue, whether the Aboriginal plaintiffs should be given their day in court, and in the end, the
demurrer was upheld and they were denied that opportunity. The reasons are there in the books.
They're in the Commonwealth Law Reports. Citizens can read them. But who reads? No-one looks at
these things. And media doesn't bring it to the people of Australia.

TONY JONES: Well here we are talking about it now, so ...

MICHAEL KIRBY: Yeah, you do ...

TONY JONES: ... you're obviously wrong to some degree. Now you were known by some at least as the
great dissenter on the High Court. If you had been in the majority on some of those big decisions,
the big dissenting decisions, how would Australia be different today in your view?

MICHAEL KIRBY: Well I don't think it's really for me to say what - how much better Australia would
have been.

TONY JONES: Just how it would be different.

MICHAEL KIRBY: Well it would have been more liberal. I mean, I am a small "l" liberal, and with
those who appointed me, both in NSW and in the federal sphere, knew that was that was so. And
getting liberals up into the higher echelons of our courts is not all that common in Australia and
it'll become less common if the appointing authorities move, as is the pressure at the moment, from
politicians who appoint judges to judges appointing judges.

That'll be a sort of reproduction, clone-like, of people who are like the present judiciary, good
chaps and who will fit in with the normal tradition. I don't support judges appointing judges. I
think that's a bad way to go.

TONY JONES: You'd rather see politicians keep doing it in spite of the fact that you think that
people like yourselves are always going to be in a minority.

MICHAEL KIRBY: Well, I think there's more chance that people of a liberal persuasion will be
appointed by politicians - let it be said on both sides of politics - than by judges. Judges tend
to be very cautious, and I think that's - for 500 years it's been done one way and now suddenly
we're seeing a change and I think it'll take out the diversity in the bench.

TONY JONES: There's been a lot of public debate and criticism about activist judges. I mean, do you
agree with the view held by some judges that when an issue is too divisive for politics it actually
falls to the High Court and to the courts generally to fill in to decide on the big issues and to
fill a vacuum.

MICHAEL KIRBY: I don't think judges have that role because judges don't choose the cases. I mean,
that's the important feature of the judiciary. The cases come to the court and the judges have no
control over what comes. But when it comes, the judges have to decide the case. They can't say,
"Oh, this is too divisive and it's too unsuitable and we're not going to deal with it." In the High
Court, you're the end of the line. And all of the justices of the court understand that that is so
and it's their obligation to decide the case.

TONY JONES: What about the view of one anonymous senior Australian judge that elected government is
a majoritarian autocracy and therefore a form of dictatorship as far as minorities and individuals
are concerned?

MICHAEL KIRBY: Well, that was a very learned opinion, but it's not original. Lord Hailsham about 20
years ago said that our system is an elected dictatorship. It's giving governments power for a
period of time which they can effectively do what they want, so long as it's constitutional. And to
say that everything that the electors approve of at election time authorises everything that's
thereafter done by governments is, as Sir Anthony Mason has said, a fairytale and a lot of people
still believe it.

TONY JONES: But does it create a form of dictatorship as far as minorities and individuals are
concerned, to take the other half of that quote?

MICHAEL KIRBY: Well that is the weakness, you see, that's the weakness of the parliamentary system.
It looks after the majorities pretty well, but the minorities sometimes get left out, like the
Aboriginals, like the Asian Australians, like gays. These groups tend to get left out. Like
prisoners, like refugee applicants.

And that's why every other civilised country now has either a bill of rights or a constitutional
charter or a statutory charter of rights. And yet even that was not accepted, despite the
recommendation of the Brennan Committee.

TONY JONES: Now, at 72 years of age with so much behind you, are you now completely comfortable in
your own skin?

MICHAEL KIRBY: I think I've always been reasonably comfortable in my own skin.

TONY JONES: Not according to your own account.

MICHAEL KIRBY: Well I don't agree with that. I think I was always comfortable in my own skin. Other
people weren't necessarily comfortable with me. And in fact it's an interesting thing to me to have
watched it over the last few years. Everyone loves my partner and some people can't stand me. And
it's been a very interesting thing to see him dealing with very powerful people and I think that's
been a very good thing for powerful people. It's a way of breaking down stereotypes and assumptions
- good for everyone.

TONY JONES: I guess what I'm talking about is your early life. And - because we know that late into
your 20s you were still living at home, and as your biographer would have it, you were still living
at home, in a way, to protect yourself from the outside world and also to protect yourself from
your own sexual urges, that you were living a sort of monastic existence, protected by your family.

MICHAEL KIRBY: Well that's what you were expected to do. I don't know that they were protecting me.
They were providing me with board and lodging and I was getting on with my work in student politics
and the Council for Civil Liberties and the pro bono work for the students at the university.

And that was the life you were supposed to lead as a gay person in those days. Don't criticise me
for that. That's what was unjust, and some people in this society would still have that. It's over.
They've got to get used to it.

TONY JONES: Well you were 28 years old when you finally - were virtually kicked out of your home by
your parents.

MICHAEL KIRBY: Pushed out! That's right.

TONY JONES: They obviously wanted to see what you'd do when you got to the outside. They found out
eventually that ...

MICHAEL KIRBY: Yes. No, they found out very quickly. Within days of my meeting my partner, Juan, he
was at the table and he's been at the table was since. He was there last Sunday with my father.

TONY JONES: OK. Let me ask you this: what are the logical implications for a just society if
homosexuality is genetic, that is, carried on a gene in the DNA, which you appear to believe is the

MICHAEL KIRBY: I think it probably is, but I don't really think that matters, whether it's genetic
or hormonal or some combination. It's probably multi-factorial and it comes.

But every gay person will tell you, everyone I know will say, "Well, I just knew that was me." And
therefore you are comfortable in your skin. I must emphasise that. You yourself know who you are
and what you are and - but unfortunately a lot of gay people keep their head below the parapet and
they keep their head below the parapet so they won't be attacked.

And if every gay person in Australia, in all the great public offices that I know stood up, the
whole shabby business would be over and Australia and other countries would have to adjust. There's
news today that Gandhi, the great Mahatma, was probably or possibly a gay man, or certainly

Well, they're trying to ban that book in India now because some people find that very unsettling.
Well, we've all got to get over it.

TONY JONES: You have said that if it is part of a person's nature, then it's actually wicked to

MICHAEL KIRBY: Do you think that's too strong? I don't think so. I think it's wicked because it's
wicked to discriminate against people because of their skin colour or because of a handicap or
because of some other indelible feature of their nature. And therefore - this is the problem the
churches have, you see, because they've got those texts.

They've somehow got to find a way to read those texts in the light of the growing knowledge which
we've had for 60 years that people don't choose their sexual orientation. It's not a lifestyle.

TONY JONES: Put aside the churches, what about the atheist prime minister who has a formulation
about why same-sex marriage should not be allowed?

MICHAEL KIRBY: Well the Prime Minister's a politician.

TONY JONES: But is that formulation wicked?

MICHAEL KIRBY: Well, the Prime Minister - I'm not going to judge the politicians. I don't think the
Prime Minister's position is very different from Mr Abbott's, but it is very different from the
opinion polls of Australians, in particular young Australians. And I hope that by being open about
my sexuality and my partner being open, that that has been a contribution in Australia.

The way we overcame our prejudice against Asian Australians I believe was we began to meet them. We
began to know them. Well now, if every gay keeps their head below the parapet, we don't know them,
we're not sure and that has to change. And my partner, Johan and I, have tried to change that.

TONY JONES: There's no doubt that the darkest moment that you had on the High Court was the
Heffernan scandal, let's say. The biography points out the staggering failures in the system, in
the federal bureaucracy, which allowed your reputation as a High Court judge to be trashed in
Parliament using forged documents.

What is the biggest lesson you take away from that obviously scarifying event?

MICHAEL KIRBY: Well, you'll say I'm just an old conservative, but I think the biggest lesson was
the wisdom of the standing orders of the Federal Parliament modelled on the standing orders of the
British Parliament that you do not attack the judges in Parliament except on a motion for their

And that was not obeyed, and instead the Senator went ahead, and he, in a well-thought-out
strategy, used my name at the very end. It was a very unpleasant week for me, but much more
important than that, it was a very bad week for the relationship between the High Court of
Australia and the Parliament of Australia.

TONY JONES: And for the relationship between some High Court judges, as it turned out.

MICHAEL KIRBY: Oh, I think we all got over that.

TONY JONES: Well, apparently not. Your fellow High Court judge Mary Gaudron had a shouting match
with the chief justice, according to the biography, because she wanted to put out a statement - or
the High Court to put out a statement supporting you because the judges learnt almost before anyone
else that the documents were forged, that the case was bogus.

MICHAEL KIRBY: But be a bit fair to my colleague. I wasn't involved in all this. I didn't have
anything to do with the discussion about media releases and so on. I knew that there was no truth
in this matter and I just went on with a case about effluent in the Brisbane waters.

But in fairness to my colleagues, it was a very stressful time for the court and I think that that
was an inevitable human consequence of the type of attack that should not have happened. That sort
of thing, quite apart from the due process to me, it ought to have respected the standing orders of
the federal Parliament, as ultimately Parliament acknowledged in its motions of regret to me.

TONY JONES: A final question on this: looking back, what do you think then of the actions of the
then prime minister, John Howard, who flagged that the Government might initiate a federal inquiry
into your fitness for office even if there were no criminal allegations?

MICHAEL KIRBY: Well, I've been around for a long time and I know enough that Mr Howard during the
dark years when he'd lost the leadership of the Opposition, Senator Heffernan stood with him. And I
think if you understand these things psychologically and politically, you can understand what
happens and how it happens.

TONY JONES: Do you really take that benign a view of things?

MICHAEL KIRBY: Well, you know, I can't - I've got to get on with my life. If you Google my name,
what comes up? Senator Heffernan's attack. I can't get away from that. That's a fact. And that's an
unfairness to me. My reputation is linked to that. After all the work and all the effort, that's
the reputation that comes up with Google. But, what can I do about it? I just get on with my life
and get on with other things and I don't lose any sleep about it.

TONY JONES: What about your future? Might you for example take the course of some other celebrated
Australian judges and go to the International Criminal Court?

MICHAEL KIRBY: Oh, no, no, no. I wouldn't do that. I've got lots of things on - the most
interesting at the moment is as a member of the so-called eminent persons group on the future of
the Commonwealth of nations. And we've just put our finishing touches on a report which will go to
CHOGM in Perth in October, and the hope of that is that it will help the Commonwealth of Nations
become a much more vigorous and fair organisation that deals with issues of human rights and so on.
So I think there's plenty to do and I'll be there.

TONY JONES: Michael Kirby, we look forward to speaking to you again as some of those issues arise,
but we'll have to leave you for now. Thank you very much for coming in to join us.

MICHAEL KIRBY: Thank you very much, Tony.

Negotiations break down in Ivory Coast

Negotiations break down in Ivory Coast

Broadcast: 07/04/2011

Reporter: Ginny Stein

Fighting has resumed in Ivory Court after presidential handover talks broke down at the last


TONY JONES, PRESENTER: Fighting has resumed in the West African nation of Ivory Coast after talks
on a peaceful handover of power broke down.

Negotiations were derailed when the president defeated in last year's elections, Laurent Gbagbo, at
the last minute refused to sign over power to the victor, Alassane Ouattara.

Ouattara's forces immediately resumed their attack on the presidential palace in the main city of

The forces loyal to Laurent Gbagbo are putting up stiff resistance.

Africa correspondent Ginny Stein reports.

GINNY STEIN, REPORTER: Holed up in a bunker at the Presidential Palace, Laurent Gbagbo is
surrounded and once again under fire. For a while, he appeared on the brink of giving up, but now
it seems he was just playing for time.

His stubbornness has exasperated the former colonial power, the French, who've taken a leading role
in the talks.

ALAIN JUPPE, FRENCH FOREIGN MINISTER (voiceover translation): What we would like to see after the
extreme patience demonstrated by president Ouattara and the African Union is that we finally get a
solution that allows us to move to the next phase, that is, the reconciliation and reconstruction
of Ivory Coast.

GINNY STEIN: The cornered president, Mr Gbagbo, has turned on the French, accusing French forces in
Ivory Coast of taking part in the attack on his residence. It's an allegation the French have
vigorously denied.

The French have been welcomed by locals desperate for any help that might bring an end to the
crisis. Many of the city's four million residents have been trapped in their homes for weeks,
unable to go out to get food and water.

RESIDENT (voiceover translation): We're tired. We haven't got any water.

GINNY STEIN: Most of the regular army have now defected, but the presidential guard are standing
firm. The besieging forces have been instructed not to kill the president for fear of galvanising
his remaining supporters.

While he did not win the election, it was close. He won 46 per cent of the vote. It seems the order
to take him alive is a caveat he's prepared to take full advantage of.

Ginny Stein, Lateline.

China warns world against interfering in Weiwei case

China warns world against interfering in Weiwei case

Broadcast: 07/04/2011


World-renowned Chinese activist and artist Ai Weiwei has been charged with unspecified economic


TONY JONES, PRESENTER: China has warned other countries not to interfere in the detention of Ai

The world-renowned activist and artist is being investigated over unspecified economic crimes.

An outspoken critic of the Chinese Government, Ai Weiwei was arrested after being barred from
boarding a plane to Hong Kong on Sunday. His house was later searched and computers were seized.

LU QING, WIFE OF AI WEIWEI (voiceover translation): This is very serious. They searched our house.
So many policemen came in to do the search. Now it has been more than 48 hours and we still have
not heard any news of him. I am very worried, worried about his situation and about his health,
which is not great.

TONY JONES: Ai Weiwei co-designed the Bird's Nest Olympic Stadium and recently exhibited at the
Tate Modern Gallery in London.

A quick look at the weather. A morning shower possible Sydney. Showers and possible thunder for
Brisbane, fine and mostly sunny in the other capital cities. That's all from us. If you'd like to
look back at tonight's interview justice Michael Kirby or review any of 'Lateline' stories or
transcript you can visit our website and follow us on Twitter and Facebook. Ali Moore will be but
tomorrow night and I'll be with you next week. Good night.