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A dangerous move

April 5th, 2005

According to this ABC report, the Rann government in SA is trying to scrap parliamentary privilege against defamation actions, as a direct response to a political crisis in which the former Speaker, Peter Lewis, who resigned yesterday, has made accusations that a number of prominent people, including MPs, are pedophiles[1]. Although it appears that Mr Lewis named names, and that publication of these names would be protected by parliamentary privilege, the reports I’ve seen don’t give names.

In defence of the legislation, Rann is quoted as saying that there’s nothing to fear from making statements if they’re true, but this claim is itself false. His objection to Lewis’ statements is not that they are provably false, but that they are unsubstantiated. The fact that MPs can make allegations that are true, or at least plausibly grounded in evidence, but not provable in court is the essence of Parliamentary privilege.

There are some changes I’d like to see made in defamation law as it relates to MPs. First, and conversely with Parliamentary privilege, I’d like a strengthening of the principle that criticism of MPs by members of the public should be protected free speech under the Constitution. Second, I’d like an expansion of the existing rights of reply (I’ve never used this mechanism in response to criticisms of me in Parliament, but I think Clive Hamilton has). Finally, the Parliament itself, through the Speaker, ought to be more rigorous in calling MPs to account for abuses of privilege[2].

One thing is for sure. Making radical changes to fundamental institutions in the heat of the moment is a very bad idea.

Update 6/4/5 The Bill has been withdrawn

fn1. This Advertiser report isn’t exactly consistent, suggesting Lewis stated “that a serving MP had been involved in homosexual acts in the south parklands.” This might, I suppose, include violations of age-of-consent laws.

fn2. Given the dominance of the party system, I’m less sure about this last item.

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  1. Dave Ricardo
    April 5th, 2005 at 08:35 | #1

    “Making radical changes to fundamental institutions in the heat of the moment is a very bad idea.”

    Spoken like a true Burkean conservative.

  2. John Quiggin
    April 5th, 2005 at 08:37 | #2

    A label I wear with pride, Dave!

  3. Paul G. Brown
    April 5th, 2005 at 10:17 | #3

    Against all forms of intra-generational wealth transfer then, are we?

    Some Burke, I see. But more Thomas Paine.

  4. Andrew Reynolds
    April 5th, 2005 at 10:34 | #4

    To paraphrase: “Legislate in haste, repent at leisure”.
    Yes, there should be some changes, but to Parliament. A good place to start would be an independent Speaker, perhaps along the same lines as the British parliament. Only problem is that it deprives one seat of the right to a truly contested election, so some further consideration may be needed.

  5. observa
    April 5th, 2005 at 13:14 | #5

    “Finally, the Parliament itself, through the Speaker, ought to be more rigorous in calling MPs to account for abuses of privilege.”

    That was precisely the problem in this case, (before yesterday’s resignation) when the Speaker himself was threatening to name names with no substantive proof. Generally MPs are cautious about abuse of PP, but Peter Lewis has increasingly become a nutty crusading obsessive on the issue of paedophilia. I gather this is due to abuse he personally suffered. The dilemma is, the aspersions he is casting might be true, but the police are well satisfied they can’t be substantiated in any prosecutorial sense. He has accused them of a cover up as a result. His problem is he stated he had photographic evidence of a minister in a lewd paedophilic act, which he has now admitted was false. Also one witness he relied on, for his accusation is a convicted paedophile himself. Now all politicians are sick of Lewis and don’t want him naming names, for the obvious reason that the bigger the lie, the more traction it may have with the baying gallery. This is particularly painful for pollies in a State, infamous for Von Einem and ‘The Family’, the latter who have never been brought to account for their crimes for lack of evidence. It is well known to authorities that Von Einem is protecting them.

    I think you’re right John that the pollies will have to wear the slur if Lewis abuses PP and simply give the accused(includes 2 serving police officers) a very vigorous right of reply. To restrict PP would be counterproductive in the long term for pollies. They might be tempted to make an exception here, but to silence Lewis now by legislation, would bring continual odium on them all anyway.

  6. April 5th, 2005 at 15:23 | #6

    John,
    You write:

    “Although it appears that Mr Lewis named names, and that publication of these names would be protected by parliamentary privilege, the reports I’ve seen don’t give names.”

    Peter Lewis did not names. It was two volunteers in his office who had worked on the pedophilia/sex abuse cases for two years who did so last Friday.

    Lewis has always said that there was no smoking gun of evidence. He has also said that he would not name names under parliamentary privilege.

  7. April 5th, 2005 at 16:10 | #7

    One potential reform would be to change the law so that parliamentary privilege did not extend to instances in which MPs were proved to have acted with malice. I have a feeling that NSW was considering such a reform in the wake of the Franca Arena affair. As to political speech, I tend to think that what’s carved out by Lange is pretty good, so would be curious to know what you see as the limits to this.

  8. April 5th, 2005 at 16:25 | #8

    When people write Von Einem, I always think Greenmantle. That’s a subject area that has come back, if indeed it ever went away.

  9. peter kemp
    April 5th, 2005 at 19:49 | #9

    John Q, the right to political communication re the constitution started in contemporary times with the High Court case of Australian Capital Television v Cth where attempted banning of political advertising on TV and radio was held to contravene an IMPLIED guarantee of freedom of communication considered to be an indispensible part of representative government and necessarily implied by the constitution.

    More to the point of the subject at hand, in Nationwide News v Wills an article attacking the Australian Industrial Relations commission and its members was alleged to be in breach of the Ind Rel Act but it was held again by the HCA (6 Justices) that the Act was invalid in violating again an implied right to freedom of political communication. The judgement is telling (notwithstanding the later case of McGinty v WA where the brake was put on implied rights)— the political communication included ” the qualifications, conduct and performance of those entrusted …with the exercise…of any part of the legislative or judicial powers” –(1992) 177 CLR 1, 74 Deane and Toohey JJ.

    Such right of communication did in the case of Theophanous v Herald and Weekly Times (1994) (4 Judge majority) over-ride State statutory defamation laws but in general such communication is subject to certain conditions ie the defendant is liable for damages unless he/she was unaware of the falsity of the statement, had not published recklessly and the publication was reasonable in the circumstances.

    [ (1994) 182 CLR 104 at 137]

    Hope this clarifies freedom of communication issues but it must be stressed that judicial activism has cooled somewhat since 1992 and changed membership, however the doctrine of precedent would be loathe to overturn the communication rights which are stronger than ‘one vote one value’ rights (Mc Ginty v WA )

  10. peter kemp
    April 5th, 2005 at 20:04 | #10

    I didn’t spell out the Theophanous case although most will be aware that this was a case of a politician suing for defamation against the written media. The result seems to be that one can slag off at a pollie and not be subject to state defamation laws but subject to the conditions ie truth, not reckless and reasonable.

  11. John Quiggin
    April 5th, 2005 at 20:56 | #11

    Gary, what you say seems to be right, which raises the question of why these changes are being made. The staffers don’t have privilege, so they can be sued.

    Andrew, I was thinking about the idea of creating an exception for malice, but I suspect it would be difficult to draw the correct line. My impression of Franca Arena, for example, is that, in ordinary language terms, she was reckless and irresponsible, but not malicious. I have no idea how the law would view this.

  12. April 5th, 2005 at 23:15 | #12

    Removing something like Parliamentary Privilege is an extreme notion, which should not be done without a lot of proper thought and debate and certainly should not be done in haste for a one-off example. I’m pleased to read just recently on the ABC website that the SA Govt has withdrawn the Bill – reportedly because it would not get through the Upper House, following the announcement by the Democrats that they would join with the Libs in opposing it. One more indication of the value of not having an Upper House controlled by the Govt of the day, whatever the party.

    I do agree that expanding the existing right of reply for anybody adversly named in a Parliament is desirable. This currently applies in the Australian Senate, but (I think) not in the Lower House and definitely not in some State Parliaments.

    The Senate Privileges Committee is currently having another look at how to deal with contempt of Parliament (which is more about unauthorised disclosure, but could apply to malicious abuse of privilege). The trouble with a House of Parliament policing its own privilege is that (a) it is policing itself and this is open to obvious bias and self-interest, and (b) it is inevitably open to political misuse/abuse. It is also hard to impose a significant penalty, as the days of politicians being able to get away with jailing or fining people are (rightly) long gone, even though technically the power may still exist.

    On the wider issue of defamation, this is a more significant issue, as these days people are far more likely to be misrepresented, slandered and vilified by the media than they are by someone using Parliament. The Senate may have a mechanism for a decent right of reply, but most of the mainstream media certainly don’t. The media like to campaign for a loosening of defamation laws, but I haven’t noticed them having much trouble slagging off people quite vociferously when the desire takes them. Frankly, given the irresponsble nature of much of the media, I can’t see why they should get even more power to slander at will with less scope for redress.

    I am undoubtedly biased on this, but I can’t see why it should be more permissable to slag off politicians than anybody else. As Peter Kemp says in item 9, truth is not necessarily required as a defence in such situations. Whilst I comprehend and don’t have a problem with the notion of an implied right to freedom of speech, it always did strike me as odd that it somehow was more free when it come to political matters than other matters. I should say I felt this way before I had a few journalists and others make extraordinarily exagerated and false claims about me a little while ago, although that experience certainly didn’t make me feel any more inclined to feel that the media were unfairly restrained in having to verify the truth of their statements before broadcasting them to the world.

  13. peter kemp
    April 6th, 2005 at 08:43 | #13

    Andrew, I agree that libelling is more likely to occur from the media towards pollies rather than pollies libelling anyone by a factor of possibly ten thousand to one.

    The question you raised, why it should be more permissable to slag off pollies than anybody else is very valid, but note per the Nationwide case I mentioned above, it also applies to any person involved in the exercise of legislative and judicial powers, ie public servants, police commissioners and judges to name but a few. ( Note that judges have much less capacity to respond compared to politicians, unless it constitutes a contempt– the dignity of Justice Kirby’s response to an abuse of privilege springs to mind here.

    It seems to me to be unfortunate that there is an unintended side effect operating here. The freedom of political expression is considered to be, by the HCA, fundamental to the political and electoral process, more important as I noted than ‘one vote one value’. The reason for this is that without freedom of expression the principle of representative democracy doesn’t get off the ground. We could never make informed judgements without free expression. It is the abuse of that freedom that is worrisome, but personally in weighing up all the considerations I think the HCA has struck a fair balance. The onus is on the alleged libeller to prove he/she didn’t know the statement made was false, and I think that the burden of that is somewhat onerous. It needs to be kept in mind that there is often a grey area between character assassination and wilful distorting of the facts of one’s personality or personal life.

    I have great sympathy for your situation and agree the media are most often the recidivist perpetrators here, but as I said a sometimes bad side effect in a trade off for a utilitarian principle seems to be the status quo.

  14. April 6th, 2005 at 13:52 | #14

    Thanks for the sympathy Peter. I don’t want to sound like a whinger, and I doubt I’d ever want to take the expense and hassle of suing somebody anyway. It’s just the hypocrisy that gets up my nose.

    Anyway, as long as it’s all for the greater good, which you’ve convincingly argued is the case.

  15. April 6th, 2005 at 17:02 | #15

    John
    you say that since the staffers inLewis’ office don’t have privilege, so they can be sued, this raises question of why these changes are being made.

    I have tried to answer this in terms of ‘the state of exception’ here and here

    As you know the category of the state of exception comes from Carl Schmitt.

  16. peter kemp
    April 6th, 2005 at 18:17 | #16

    Andrew B, another consolation is being demonstrated by your very presence on this blog. The written media is fast going towards consolidation held by corporate and TNC interests which in their mania for the fast buck have declining interests in presenting fair and balanced commentary to the plebs. I must qualify that by saying the US is further advanced on this track than us, and the regional or town independent papers may be the exception in remaining fiercely independent all over the world.

    Give it another decade and I predict in excess of 50% of information in written form (and video broadband blogs?) will come from blogsites like this (take a bow Prof J.Q–as a non economist where do I come for economic info knowing there is no party political/corporate/Imperial bullshit) because people love instant news for which blogs are more capable of distributing instantly, but with the crucial advantage of instant feedback.

    The number of mainstream press commentators who give their email addresses for comment is now very low which means for myself personally, I often refuse to read them because I have no method of reply except to write a letter to the editor with a very minimal chance of having it published.

    What I am suggesting is that we are seeing the corporate written media being supplanted, perhaps even the visual media as technology advances. Seeing these corporate suborned media jackals—not all of course– humbled will give as much pleasure to me as I presume it will for you. In the meantime, long live Aunty ABC.

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